ITEMID: 001-106382
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2011
DOCNAME: DOJAN AND OTHERS v. GERMANY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
TEXT: The applicants are German nationals who all live in Salzkotten, North Rhine-Westphalia.
Mr Willi Dojan, a locksmith, and his wife Anna Dojan, a housewife, who were born in 1960 and 1966 respectively, lodged a complaint in their own right and as representatives of their son David, who was born in 1993 (application no. 319/08).
Mr Theodor Fröhlich, a locksmith, and his wife Lydia, a housewife, born in 1967 and 1964 respectively, lodged a complaint in their own right and as representatives of their daughter Elly, who was born in 1995 (application no. 2455/08).
Applications were also lodged by Mr Artur Wiens, a carpenter, and his wife Anna Wiens, a housewife, who were born in 1975 and 1977 respectively (application no. 7908/10), Mr Eduard Wiens, an electronic mechanical engineer, and his wife Rita Wiens, a housewife, who were born in 1972 and 1974 respectively (application no. 8152/10), and Mr Heinrich Wiens, a cabinetmaker, and his wife Irene Wiens, a housewife, who were born in 1961 and 1965 respectively (application no. 8155/10). Messrs Artur, Eduard and Heinrich Wiens are brothers.
The applicants Dojan and the three couples Wiens were represented before the Court jointly by Mr R. Kiska, a lawyer practising in Bratislava and Mrs G. Eckermann, a lawyer practising in Dreieich. The applicants Fröhlich were represented by Mrs G. Eckermann alone.
The applicants are members of the Christian Evangelical Baptist Church and hold strong moral beliefs as part of their religious faith.
Each of the five couples have several children who attend or who attended a local public primary school in Salzkotten, North Rhine-Westphalia.
Mandatory sex education classes form part of the school curriculum in the fourth year of primary schooling. In 2006, the school conference (Schulkonferenz) – a body established at every school consisting of the school’s principal and elected representatives of teachers, parents and pupils – had further decided that a two-day school theatre workshop “Mein Körper gehört mir” (“My body is mine”) should be organised at regular intervals as a mandatory school event for children in the third and fourth years, comprising the age group between seven and nine, for the purpose of raising awareness of the problem of sexual abuse of children by strangers or family members with a view to its prevention.
The subject of prevention of sexual abuse is part of the official curriculum in the Federal Land of North Rhine-Westphalia and the said theatre workshop is run at numerous schools in the Land. In the course of role play, children are presented with different situations in which sexual abuse might occur and are taught that they may resist behaviour that makes them feel uncomfortable and how to report such behaviour to a person of trust if need be. Parents were informed of the content and purpose of the workshop prior to its implementation in 2007. Two-day workshop modules took place on 18 and 25 January and on 7 and 14 February 2007, as well as during school terms in subsequent years.
In addition, it is a school tradition at the Salzkotten primary school to organise an annual carnival celebration for pupils called the “Lütke Fastnacht”. By a decision of the school conference of 23 October 2006, the celebrations for the year 2007 were fixed for 15 February 2007 and parents were informed accordingly. Attendance at the celebrations is compulsory until the official end of morning school lessons. Children are free to dress up and wear costumes during the celebrations and to participate in a carnival procession that is organised in the school yard following compulsory school hours. Since 2006 the school has offered swimming classes or exercise in the gym as an alternative activity for children who do not wish to attend the compulsory school carnival celebrations in the morning.
In spring 2005 David Dojan and Elly Fröhlich attended the fourth year of the Salzkotten public primary school. By letter dated 31 May 2005, the parents of the children who attended the fourth year were informed that six sexual education lessons were to be held as from 1 June 2005 dealing with subjects such as procreation, pregnancy and child birth. They were further informed that parents had the opportunity to look at the book to be used for these lessons as from the following school day – that is, on 1 June 2005.
After having looked at the book, the Dojan and Fröhlich parents, together with other parents belonging to the Christian Evangelical Baptist Church and whose children attended the same school, requested that their children be exempted from sex education classes in the period from 1 to 17 June 2005. They asserted that their children had been raised without the negative influence of the media, had been used to modest and chaste sexual behaviour at home and did thus not have the necessary maturity to receive the envisaged sex education. The parents objected in particular to the book’s content, which in their opinion was partly pornographic and contrary to Christian sexual ethics requiring that sex should be limited to matrimony. In their view, it set forth a liberal, emancipatory image of sexuality which was not consistent with their religious and other moral beliefs and would lead to premature “sexualisation” of the children.
The school refused the request on the grounds that, according to the relevant guidelines and the curriculum, attendance at the lessons was mandatory. David Dojan and Elly Fröhlich attended the first two sex education lessons. Following the refusal of a further request to exempt their children from sex education classes, several parents belonging to the Baptist Christian Evangelical Church, including the Dojan and Fröhlich parents, appeared in the school building on 8 June 2005 and prevented their children from attending the next sexual education lesson, against the school principal’s wishes. The principal and class teacher subsequently decided to hold the lessons at irregular intervals and at unannounced hours in order to hinder any obstruction by the parents. Consequently, the parents kept their children off school for the whole week of 13 to 17 June 2005, during which the remaining sexual education lessons were held.
Willy and Anna Dojan, as well as Theodor and Lydia Fröhlich, were each fined 75 euros (EUR) for not sending their children to school during the aforementioned period. The Paderborn District Court upheld the fines imposed in the case of the Dojan couple by a judgment of 5 September 2006 and in the case of the Fröhlich couple by a judgment of 13 October 2006, holding that to keep the children off school without having been granted the necessary exemption by the school’s principal had not been justified.
In its judgment of 5 September 2006 the court held that the parents’ right to educate their children and their right to freedom of religion was restricted by the State’s mandate to provide for education, which was implemented by means of compulsory schooling. The neutral transmission of knowledge regarding reproduction, contraception and so forth in school did not prevent the parents from conveying their moral values to their children and did not infringe the personal rights of the children.
In its judgment of 13 October 2006 the court further specified that the lessons had been held in accordance with the underlying legal provisions and the ensuing guidelines and the curriculum, which had been based on current scientific and educational standards. The same was true for the teaching materials used, which had delicately introduced the subject of sexuality and childbirth to the reader and which had helped to counteract any possible sense of shame. Sexual education for the concerned age group was necessary with a view to enabling children to deal critically with influences from the society, instead of avoiding them and being isolated. The court specified that in any event the applicants had not been entitled to prevent their children from attending mandatory lessons but could have used legal means to obtain an exemption for the children from the lessons at issue by, for instance, lodging a request for interim measures with the competent administrative courts.
The Hamm Court of Appeal dismissed appeals on points of law subsequently brought against the above judgments by a decision of 26 February 2007 with respect to the Dojan couple and by a decision of 26 June 2007 with respect to the Fröhlich couple. The Court of Appeal found that it was established case-law that compulsory schooling constituted an admissible restriction of parents’ rights to freedom of religion and to educate their children. In its decision of 26 June 2007 the Court of Appeal stressed in addition that the State’s mandate to provide education was not limited to the transmission of knowledge but also aimed at educating responsible and emancipated citizens capable of participating in the democratic processes of a pluralistic society with a view, in particular, to integrating minorities and avoiding the formation of religiously or ideologically motivated “parallel societies”.
On 12 June and 10 October 2007 respectively the Federal Constitutional Court refused to admit the related constitutional complaints without providing reasons.
On 18 and 25 January 2007 Willi and Anna Dojan also kept one of their daughters, who was born in 1997, off school, as the theatre workshop “My body is mine” was running on those days. They also prevented her from attending accompanying sexual education classes in February 2007. They argued that, while they were not opposed to sexual education in school in general, they regarded the particular curriculum used as being harmful to the moral development of their daughter. They were fined EUR 120 each.
The Paderborn District Court upheld the fines by a judgment of 27 May 2008. It held that the transmission of knowledge in the field of sexual violence and abuse with a view to providing children with tools to find help in difficult situations also fell within the educational mandate of the State and that the religious motives cited by the parents did not constitute sufficient justification to prevent the child’s school attendance. It further found that the fine of EUR 120 had been justified in view of the previous conviction of the couple by the court’s judgment of 5 September 2006.
The Hamm Court of Appeal dismissed an appeal on points of law brought by the couple by a decision of 26 August 2008.
On 10 November 2008 the Federal Constitutional Court refused to admit their subsequent constitutional complaint without providing reasons.
On 7 and 14 February 2007 Eduard and Rita Wiens prevented one of their children, and Heinrich and Irene Wiens prevented three of their children, who would have been in the envisaged age group, from attending the school theatre workshop “My body is mine”. They stated that it was incompatible with their religious convictions to make a child’s own feelings and will the basis of his or her sexual behaviour, as this would encourage them to act according to their sexual desire like an adult, lose their sense of shame and engage in sexual acts with adults. The biblical doctrine of chastity, limiting sexuality to matrimony, constituted sufficient protection against sexual abuse and there was no scientific proof that the theatre workshop had a preventive effect in this respect.
On 15 February 2007, each of Eduard and Rita Wiens and Artur and Anna Wiens further prevented two of their respective children from attending the school carnival celebrations on the grounds that they were inconsistent with their religious and moral beliefs and the religious education they provided to their children. They stated that, in their opinion, the “Lütke Fastnacht” carnival was a Catholic festivity which was directed by carnal desire and accompanied by immoral and uninhibited behaviour. They claimed that they had not been aware that their children would have had the alternative opportunity to attend swimming lessons and that they had not sent their children to school in order that the children not be exposed to the carnival celebrations in the classroom or the gym. Compulsory attendance at such an event constituted a violation of their freedom of conscience and religion, as well as their right to educate their children.
Each of Eduard, Rita, Heinrich and Irene Wiens were fined EUR 80 and Artur and Anna Wiens were both fined EUR 40 by the school authorities for not sending their children to the mandatory school events without having obtained prior exemption from the school principal.
The Paderborn District Court upheld the fines by separate judgments of 11 June 2008 in respect of each of the three couples.
Concerning the school theatre workshop, it found that the parents’ constitutionally guaranteed right to educate their children in accordance with their religious and moral beliefs and their children’s right to freely determine their attitude towards sexual matters were on an equal footing with – and restricted by – the State’s mandate to provide for school education. While the State could pursue its own educational goals, it had to be neutral and tolerant towards the parents’ views and refrain from systematic political, ideological or moral manipulation. As regards sexual education in school, the school authorities had had to take into account the children’s natural sense of shame and had been required to consider the parents’ related moral and religious beliefs. The court was of the opinion that the school theatre workshop in the case at hand had been solely aimed at raising awareness regarding the subject of sexual abuse, which was undeniably a matter where there was a need for action by the State in order to protect children at an early stage. The school event had not promoted or rejected specific sexual behaviour and had not put into question any sexual doctrine based on the applicants’ religious beliefs.
As regards the carnival celebrations, the court found that, as they had not been accompanied by any religious activities and their sole purpose had been that the pupils could celebrate together until the end of morning lessons, the State’s duty of neutrality and tolerance had been observed. Furthermore, the children had had the opportunity to attend alternative events and their parents must have been aware of that alternative, which had also showed that the school authorities had tried to accommodate the religious and moral beliefs of the several children belonging to the Baptist faith in the local primary school to the extent possible, bearing in mind the proper functioning of the school system.
The Hamm Court of Appeal dismissed appeals on points of law lodged by each of the couples. It did so by decisions of 5 March 2009 with respect to Eduard and Rita Wiens and Artur and Anna Wiens and by two decisions of 31 March 2009 it dismissed related complaints by the two couples of a violation of their right to be heard.
By a decision of 16 July 2009 the Hamm Court of Appeal dismissed the appeal on points of law lodged by Heinrich and Irene Wiens against the District Court’s judgment of 11 June 2008. The Court of Appeal’s decision was served on their counsel on 10 August 2009.
On 21 July 2009 the Federal Constitutional Court, by a reasoned decision, refused to admit a constitutional complaint lodged by Eduard and Rita Wiens against the above-mentioned decisions rendered in their respect. The Federal Constitutional Court reiterated that the constitutionally guaranteed right to freedom of religion in conjunction with the right of parents to care for and educate their children comprised the parents’ right to impart their religious and moral beliefs to their children and protect them from diverging opinions. However, the Constitution also called on the State to provide school education, a mandate that was implemented by means of compulsory schooling, which therefore constituted an admissible restriction of the parents’ right to educate their children. While the State had the right to pursue its own educational goals, it was nevertheless under an obligation to act in a neutral and tolerant manner vis-à-vis the educational views of parents. The State had to refrain from measures aiming at systematic manipulation in respect of specific political or ideological concepts and from identifying itself with a particular belief or ideology in order not to jeopardise religious peace in society.
The Federal Constitutional Court found that the decisions of the domestic courts in the case at hand had complied with these principles. The District Court had correctly assessed that the school theatre workshop, raising the children’s awareness of possible sexual abuse and presenting ways of preventing it, had not infringed the school authorities’ obligation of neutrality. The workshop would not have put into question the parents’ sexual education based on their religious convictions, as the children would not have been influenced to approve of or reject specific sexual behaviour. The applicants’ allegations that the theatre workshop promoted “free sexuality” for children or constituted grooming of the children for paedophilia had neither been supported by the facts as established by the lower courts nor by the content of the teaching materials used for the theatre workshop. In the light of these considerations, there was nothing to establish that the lower courts had misjudged the scope of the parents’ right to freedom of religion and to educate their children according to their religious and moral beliefs.
The Federal Constitutional Court further held that the District Court’s finding that the “Lütke Fastnacht” carnival event had not infringed the State’s obligation of neutrality was unobjectionable, taking into account that the event had not been connected with religious acts and that the children had been under no obligation to dress up or wear costumes or actively participate in the celebrations. The same was true for the District Court’s finding that the applicants’ right to freedom of religion and their right to educate their children had not required that the school authorities prevent the applicants’ children from witnessing the other pupils’ carnival celebrations. Such tension between the religious convictions of a minority and the conflicting traditions of the majority resulting from school attendance were acceptable as a matter of principle. This was even more obvious where, as in the case at hand, the school authorities had attempted to strike a balance between the parents’ constitutional rights and the State’s mandate to provide education by offering alternative events.
By a decision of the same date, the Federal Constitutional Court also refused to admit a constitutional complaint lodged by Artur and Anna Wiens without providing reasons. The decisions were not posted to the claimants before 5 August 2009.
In view of the Federal Constitutional Court’s decisions with respect to their relatives, Heinrich and Irene Wiens refrained from lodging a constitutional complaint.
It appears that on subsequent occasions in following school terms, the three Wiens couples continued to prevent those of their children who were subject to one or the other of the aforementioned compulsory sexual education modules or school events from attending them. The parents were subject to ever increasing fines, which they deemed to be unlawful and refused to pay. As attempts by the domestic authorities to enforce payment were to no avail, the parents were each sentenced to imprisonment in lieu of payment for up to forty-three days.
For instance, by separate decisions of the Paderborn District Court of 11 March 2009, Eduard Wiens was sentenced to a fine of EUR 1,090 and Artur Wiens to a fine of EUR 450 for not sending several of their children to compulsory school events on repeated occasions. Following fruitless attempts to enforce payment of such fines, an application by the public prosecutor to impose a prison sentence of forty days with respect to Eduard Wiens and thirty days with respect to Artur Wiens was granted by separate decisions of the Paderborn District Court on 1 March 2010.
Eduard Wiens’s subsequent appeal was dismissed by a decision of the Paderborn Regional Court on 13 April 2010. The court held that the applicant’s imprisonment had been lawful and had not been disproportionate. It emphasised that the applicant had initially been fined and that imprisonment had not been a sanction for the administrative offence on which the fine had been based but solely a means to enforce the applicant’s payment obligation. The question of whether the imposition of the underlying fine had been lawful was not the subject of the proceedings regarding the prison sentence. The Regional Court further held that the length of the sentence imposed had been in line with the District Court’s practice and had thus been proportionate.
By a decision of 14 April 2010 the Regional Court dismissed an appeal brought by Artur Wiens against the imprisonment order with similar reasoning. However, when comparing the length of the sentence imposed with previous sentences imposed by the District Court for unpaid fines (such as ten days for a fine of EUR 250 and forty days for a fine in the amount of EUR 1,090), the court found that the sentence of thirty days handed down to Mr Wiens had been excessive and reduced it to twenty days.
No further court decisions with respect to imprisonment orders relating to other members of the Wiens family were submitted to the Court. However, according to information submitted by the applicants’ counsel, similar sentences were imposed on all of the parents. It appears that Heinrich Wiens served a prison sentence from 26 August to 6 October 2010 and that his wife Irene was sentenced by a decision of the Paderborn District Court on 2 July 2010 to a prison sentence of forty-three days for non-payment of a fine in the amount of EUR 1,090, service of which sentence commenced on an unknown date in February/March 2011. Her request for immediate release from prison lodged with the Court under Rule 39 of the Rules of Court on the grounds that, in particular, the length of her prison sentence had been disproportionate in breach of Article 5 of the Convention and had caused irreparable damage to her family life as protected by Article 8, was rejected by the President of the Fifth Section on 9 March 2011.
It further appears that similar prison sentences imposed on Anna Wiens and Rita Wiens were adjourned because of Anna Wiens being pregnant and Rita Wiens nursing a newborn child.
Pursuant to Article 4 of the German Basic Law (Grundgesetz), freedom of religion shall be inviolable and its undisturbed practice shall be guaranteed.
While Article 6 (2) of the Basic Law acknowledges that the care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them, its Article 7 stipulates that the entire school system shall be under the supervision of the state. Paragraph 4 of Article 7 guarantees, inter alia, the right to establish private schools. Private schools that serve as alternatives to state schools shall require the approval of the state and shall be subject to the laws of the Länder. Paragraph 5 states that private primary schools shall be approved only if the educational authority finds that the school serves a special educational interest or if, on the application of parents or guardians, it is to be established as a denominational or interdenominational school or as a school based on a particular philosophy and no state primary school of that type exists in the municipality.
Pursuant to section 33 of the Schools Act of the Federal Land of North Rhine-Westphalia (Schulgesetz NRW), sexual education in school complements sexual education by a child’s parents. Its aim is to provide pupils with knowledge of biological, ethical, social and cultural aspects of sexuality according to their age and maturity in order to enable them to develop their own moral views and an independent approach towards their own sexuality. Sexual education should encourage tolerance between human beings irrespective of their sexual orientation and identity. Paragraph 2 of the said provision stipulates that parents have to be informed in due course of the purpose and content of school sexual education.
Primary schooling in Germany comprises the first to fourth year. Pursuant to the Schools Act and the Compulsory Schooling Act of the Federal Land of North Rhine-Westphalia (Schulpflichtgesetz NRW), compulsory primary schooling starts at the age of six and applies to all children having their residence in North Rhine-Westphalia. Children are obliged to regularly attend classes and all other mandatory school events and parents are responsible for ensuring regular attendance by their children. At the request of a child’s parents, a school’s principal may exempt pupils from certain classes or school events in the event that important reasons justify such exemption (sections 34(1), 35(1), 41(1) and 43 (1) and (3) of the Schools Act and sections 1(1), 3(1), 16(2), 17 and 20(1) and (2) of the Compulsory Schooling Act). Failure by the parents to ensure their children’s attendance constitutes an administrative offence which may result in the imposition of a fine (section 126 of the Schools Act).
According to section 17 of the Administrative Offences Act, fines may range from EUR 5 to 1,000 depending on the nature of the offence. Section 20 of the said Act specifies that in the event of several fines each of them shall be determined separately. Pursuant to section 96 of the same Act, the competent court may order arrest to enforce the payment of a fine in the event that: (i) the amount has not been paid within two weeks following entry into force of the decision by which it was imposed; (ii) it has not been established that the debtor is unable to pay; and provided that (iii) the debtor has been informed of the possibility of his arrest. The duration of the arrest in lieu of payment may not exceed six weeks and in the event of several fines imposed by one decision it may not exceed a period of three months. An arrest may not be repeated in respect of the same fine.


ITEMID: 001-58008
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 1996
DOCNAME: CASE OF NSONA v. THE NETHERLANDS
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (victim);No violation of Art. 3;No violation of Art. 8;Not necessary to examine Art. 13
TEXT: 6. Francine Nsona and Bata Nsona are both Zaïrean nationals. Bata Nsona was born on 26 September 1960, Francine on 15 March 1984.
7. At the time of the events complained of Bata Nsona lived in Vlaardingen (near Rotterdam) with her son, who according to her passport was born there in March 1992. She has since moved to Rotterdam.
8. Bata Nsona arrived in the Netherlands in June 1989, claiming status as a refugee.
The Netherlands authorities did not recognise her as such but eventually, on 17 November 1992, issued her with a residence permit (vergunning tot verblijf - see paragraph 58 below) for "cogent reasons of a humanitarian nature" (klemmende redenen van humanitaire aard). This permit also applied to her son.
9. A birth certificate issued by the District Commissioner and Registrar of Births, Deaths and Marriages (commissaire de zone et officier de l’état civil) of the Kalamu District of Kinshasa states that Francine was born on 15 March 1984 as the daughter of a Mr Mbemba (no first name given) and Ms Ndombe Nsona.
10. It is accepted by those appearing before the Court that Francine’s parents are dead. The date of her father’s death has not been communicated to the Court, although it appears to have been some time before the events complained of. The Government assume that her mother died in Brazzaville, Congo, in the spring of 1993. However, death certificates were produced neither before the Commission or Court nor, apparently, before the Netherlands judicial or administrative authorities.
11. The applicants claim that Bata Nsona is the sister of Francine’s mother.
When interviewed by the immigration authorities in relation to her claim of refugee status, in September 1989, Bata Nsona stated that she had a sister called Ndombe Nsona who was then about twenty-five years old.
12. The Commission’s file contains a photocopy of a note which is claimed by the applicants to be a request by Francine’s mother to Bata Nsona to take care of Francine. This note is headed Testament and handwritten in the Lingala language on a page apparently torn out of a school exercise book. It reads as follows:
"I, NSONA NDOMBE,
If today I die, please entrust my daughter NSONA FRANCINE to the care of my little sister NSONA BATA.
Thank you.
Brazzaville, 24.09.92."
13. It is not established whether, apart from the alleged ties between Francine and Bata Nsona, Francine has any other living relatives.
According to information obtained by the Government, before her journey to the Netherlands (see paragraph 14 below), she lived with a Mr Albert Mbemba and Ms Célestine Bakangadio in Kinshasa.
Ms Bakangadio is claimed to be a sister of a business relation of Francine’s father, who had allegedly taken care of Francine on the death of her mother and subsequently entrusted her to Ms Bakangadio and her family. The Government further state that Mr Mbemba and Ms Bakangadio do not know any living relatives of Francine’s, that they do not know Bata Nsona, and that they are not acquainted with the note dated 24 September 1992 allegedly written by Francine’s mother.
A publication entitled "Haal de was maar binnen" (Gather in the washing) by C. de Stoop (published in January 1995) suggests that Mr Mbemba and Ms Bakangadio may simply be Francine’s parents.
14. Francine, Bata Nsona and the latter’s son arrived at Schiphol Airport on 29 December 1993 on Swissair flight SR 794 from Geneva.
15. Bata Nsona’s passport - which had been issued in Kinshasa the day before - listed Francine as one of Bata Nsona’s children. However, on inspection by the Royal Military Constabulary (Koninklijke marechaussee) border guards, it was found that the passport had been tampered with: Francine’s name and photograph had not been entered into it by the proper authority. When confronted with this finding, Bata Nsona claimed that Francine was her niece but she proffered no documentary evidence to prove this.
It appears that Bata Nsona was arrested on suspicion of having committed forgery but later released.
16. Other Zaïrean nationals arriving on the same flight included a Ms M.M. According to a note made by an officer of the Royal Military Constabulary, copies of documents relating to her were found in Bata Nsona’s luggage. Ms M.M. was found to be in possession of identity documents in the names of different persons.
17. Bata Nsona and her son were allowed to enter the Netherlands on 30 December 1993 since they held valid residence permits.
18. As Francine did not have a provisional residence visa (machtiging tot voorlopig verblijf) or even a travel visa (reisvisum) (see paragraphs 55 and 56 below), she was refused entry and taken to the airport hotel at Schiphol, where she stayed under the supervision of the Royal Military Constabulary.
19. Bata Nsona was informed by the Royal Military Constabulary that she would have to accompany Francine back to Zaïre, which - as would appear from a note by a Royal Military Constabulary officer – she agreed to do. Seats for her and Francine had already been reserved on a flight on 3 January 1994 to Zürich, from where they would fly on to Kinshasa the following day, tickets having been provided by Swissair.
20. On 31 December 1993 Bata Nsona filed an application to the head of the local police at Vlaardingen on behalf of Francine for a residence permit as a foster child and for compelling humanitarian reasons.
She also applied to the District Court (kantonrechter) of Schiedam to be appointed as Francine’s temporary guardian (tijdelijk voogdes) and another person to be appointed as temporary co-guardian (tijdelijk toeziend voogd). It is common ground that the District Court, having been informed that Francine had been made to leave the country for the time being, suspended its decision on this application.
21. On the same day Bata Nsona returned to Schiphol Airport requesting that Francine be allowed to accompany her to her home in Vlaardingen, claiming that there was nobody in Zaïre who could take care of her. She also stated that she would not accompany Francine back to Zaïre.
22. Also on 31 December 1993, at about 12.30 p.m., the applicants’ lawyer, intending to seek an injunction against the State prohibiting Francine’s removal, applied for a hearing date for summary proceedings (kort geding) before the President of the Regional Court (arrondissementsrechtbank) of The Hague. The President set the case down for hearing on 11 January 1994. At about 1 p.m. this date was communicated by the applicants’ lawyer to the lawyer representing the State (Landsadvocaat), who in turn informed the Ministry of Justice.
23. The responsible official of the Ministry of Justice decided that Francine would not be allowed to await the outcome of the summary proceedings in the Netherlands.
24. On 31 December 1993, at about 2.30 p.m., the applicants’ lawyer was informed by telephone by an officer of the Royal Military Constabulary that at that time Francine was boarding a Swissair flight for Zürich. The lawyer informed this officer of the date set for the hearing in summary proceedings before the President of the Regional Court. The officer, however, replied that he was bound to remove Francine from Netherlands territory unless instructed otherwise by the Ministry of Justice. The aircraft took off at about 2.45 p.m.
25. The Government state that the Royal Military Constabulary, assuming that the applicants and Ms M.M. had been travelling together - copies of documents relating to Ms M.M. having been found in Bata Nsona’s luggage (see paragraph 16 above) - had entrusted Francine to Ms M.M., who was also being removed and had agreed to accompany Francine. Francine and Ms M.M. were both booked on a flight from Zürich to Kinshasa on 4 January 1994.
The applicants later claimed before the Netherlands courts that the person in whose company Francine arrived at Zürich was not Ms M.M. but someone else. In any event, it is common ground that this person left Zürich Airport before Francine. The applicants have stated before the Court that she absconded as early as 1 January.
26. Seeking to prevent Francine’s being sent on from Zürich, the applicants’ lawyer requested the President of the Regional Court of The Hague on 3 January 1994 to bring forward the date of the hearing. The hearing took place the same day at 2.30 p.m. There being no longer any point in obtaining an injunction preventing Francine’s removal from the Netherlands, the lawyer sought an order addressed to the State to allow Francine to return and subsequently remain in the Netherlands pending a decision by the administrative authorities on a request for a residence permit.
27. On 4 January 1994, following a request by the applicants’ lawyer not to send Francine to Zaïre, the Swiss authorities decided to postpone her departure from Zürich.
28. Also on 4 January 1994 the President of the Regional Court of The Hague gave judgment finding that the applicants had no locus standi. Francine being a minor, she had to be represented by a guardian, which Bata Nsona was not.
Noting that no death certificate of Francine’s mother had been submitted, he found that the document of 24 September 1992 allegedly containing the last will of Francine’s mother in respect of the care of Francine (see paragraph 12 above) did not contain any concrete indication that Bata Nsona had in fact been entrusted with the custody of Francine. Furthermore, Bata Nsona could have applied to the District Court for appointment as temporary guardian earlier than 31 December 1993; there were no exceptional circumstances on the basis of which the applicants’ requests should be held admissible.
In an obiter dictum the President extensively discussed the substance of complaints adduced by the applicants.
He did not consider Francine’s removal to be unlawful, since the application for a residence permit made on her behalf had no reasonable prospects of success in any event. Nor did he find it established that Francine had been made to travel unaccompanied.
In so far as the applicants had relied on Article 3 of the Convention (art. 3), there were no substantial grounds on the basis of which the existence of a genuine and personal risk of inhuman treatment in Zaïre had to be assumed.
It had not been suggested, nor did it appear, that the applicants were in a position to rely on the Government’s policy with regard to foreign foster children.
Finally, he did not consider that Francine’s removal gave evidence of disproportionate harshness. Francine had apparently been able to support herself either in Congo or in Zaïre from the death of her mother until she left for the Netherlands. Not finding it established that in these countries her care was not assured, the President found no compelling humanitarian reasons on the basis of which she should be allowed to reside in the Netherlands.
29. On 18 January 1994 the applicants appealed against this judgment to the Court of Appeal (gerechtshof) of The Hague.
30. On 5 January 1994 the applicants’ lawyer was informed by the Swiss border police that Francine’s departure was scheduled for 6 January 1994 and that this would only be cancelled if evidence were submitted that she would not be met upon her arrival in Zaïre, or if confirmation were received that she would be granted entry into the Netherlands.
31. On 6 January 1994, Francine, who until that moment had stayed in a Swissair nursery, left Zürich on a Swissair flight to Kinshasa, where she arrived on 7 January 1994. It appears that she travelled alone.
On the same day the Netherlands Embassy at Kinshasa requested the International Committee of the Red Cross to meet her at Kinshasa Airport. This request was later withdrawn, since the Netherlands authorities had been informed that Francine would be met there by a Mr Monga, the external relations manager of the Banque du Zaïre and a business relation of Swissair, whom Swissair had contacted apparently of its own motion.
32. Francine arrived in Kinshasa on 7 January 1994 at approximately 6.45 a.m.
Subsequent events are described in a letter dated 31 January 1994 from the Minister for Foreign Affairs (Minister voor Buitenlandse Zaken) to the Minister of Justice (Minister van Justitie). The Minister for Foreign Affairs stated that due to communication problems with the Embassy in Kinshasa it had not been possible to inform the Embassy in time about Francine’s arrival in Kinshasa and that therefore no employee of the Embassy had been present at her arrival, but that she had been met by Mr Monga. Since Mr Monga could not reach Francine’s family or any of her acquaintances, he had entrusted her to the Zaïrean immigration authorities. In the afternoon of 7 January 1994 the Director of the Zaïrean Immigration Department had requested a member of his staff to take Francine to the address which she had given, as no member of her family had contacted the immigration authorities. After having spent the night at the home of this immigration officer, Francine had been taken to the address of Mr Mbemba and Ms Bakangadio (see paragraph 13 above), where she had lived since then. The Minister added that Francine also stayed with her grandmother from time to time.
33. Also on 7 January 1994 the head of the local police in Vlaardingen informed Bata Nsona of the refusal of her application on behalf of Francine for a residence permit. The application could not be considered, on the formal ground, inter alia, that the form had not been signed by Francine herself or by her legal representative, the question of custody over Francine being still pending before the District Court.
34. Bata Nsona filed an administrative appeal (administratief beroep - see paragraph 71 below) against this decision to the Deputy Minister of Justice (Staatssecretaris van Justitie) on 13 January 1994.
35. In his letter to the Minister of Justice (see paragraph 32 above), the Minister for Foreign Affairs stated that a meeting took place at the Netherlands Embassy at Kinshasa on 28 January 1994 between Embassy officials and Francine. Francine was accompanied by Mr Albert Mbemba and Ms Célestine Bakangadio. She was reported to be in good health and attending school.
36. By this time the case had been widely reported in the press.
By a notarial deed dated 15 February 1994, three Netherlands nationals founded the Stichting Francine terug ("Foundation for the return of Francine"), the purpose of which was "to further the interests" of Francine, inter alia by "promoting her immigration in the Netherlands".
37. On 3 March 1994 the applicants and the Stichting Francine terug applied under section 8:21 (3) of the General Administrative Law Act (Algemene Wet Bestuursrecht) to the President of the Hague Regional Court for interim measures including an order to grant Francine immediate provisional access to the Netherlands.
On 25 March 1994 the Acting President of the Regional Court held that the Stichting Francine terug lacked the required standing but found the applicants’ application admissible. However, he rejected the application as ill-founded. The Acting President held that Francine or her legal representative should apply for a provisional residence visa in the normal way. He did not find it established that it was unreasonable to require her to await the decision on this application in Zaïre.
38. On 31 March 1994 Bata Nsona applied to the Minister for Foreign Affairs, via the head of the local police, for a provisional residence visa for Francine (section 1 of the Aliens Ordinance and section 7 of the Sovereign Ordinance (Souverein Besluit) of 12 December 1813 - see paragraph 57 below).
39. On 17 August 1994 the Deputy Minister declared the administrative appeal against the refusal of Bata Nsona’s application for a residence permit for Francine (see paragraph 34 above) well-founded and annulled the decision of the head of police. Bata Nsona was given three months to arrange for the appointment of a guardian for Francine; once that was done, the application would once more be considered.
40. On 30 August 1994 an official of the Netherlands Embassy visited Francine at the home of Mr Mbemba and Ms Bakangadio, where she was still living, and found her in good health and better spirits than in January.
41. On 5 September 1994 the applicants’ lawyer lodged an appeal with the Administrative Division (Sector Bestuursrecht) of the Hague Regional Court against the Deputy Minister of Justice’s decision of 17 August (see paragraph 39 above), seeking a decision that Francine should be allowed to await the outcome of the application proceedings for a residence permit in the Netherlands.
42. Bata Nsona’s application for a provisional residence visa for Francine (see paragraph 38 above) was refused on 29 September 1994.
43. The case of Francine continued to occasion considerable interest in the press throughout 1994. Questions were asked about it in Parliament on several occasions.
44. Francine arrived in the Netherlands a second time on 12 January 1995, again without a provisional residence visa. The Government state that they made enquiries as to her situation in Zaïre. She was allowed to await the outcome of these in the Netherlands.
45. It is common ground that on 24 January 1995 the Schiedam District Court forwarded Bata Nsona’s application to be appointed as Francine’s temporary guardian and another person to be appointed as temporary coguardian (see paragraph 20 above) to the Rotterdam District Court for the reason that Francine now lived within the jurisdiction of the latter court.
The application was granted by the Rotterdam District Court on 27 June 1995.
46. The Government state that on 21 September 1995 the Deputy Minister of Justice decided, partly in Francine’s interests, no longer to oppose her residence in the Netherlands and to instruct the Rotterdam head of police to invite her to apply for a residence permit for the purpose of "residence in the foster family of Bata Nsona".
Such a permit was applied for on 15 November, granted on 1 December and issued on 15 December.
47. On 5 February 1996 the applicants withdrew their appeal against the judgment of the President of the Regional Court (see paragraph 29 above) as far as the merits of the case were concerned, maintaining only their claim for costs. On the same date they withdrew their appeal against the decision of the Deputy Minister of Justice (see paragraph 41 above).
48. The following is a description of the regime governing the admission of aliens to Netherlands territory applying, at the time of the events complained of, to aliens in general. Binding rules were, and are, laid down in the Aliens Act (Vreemdelingenwet), the Aliens Ordinance (Vreemdelingenbesluit) and the Aliens Schedule (Voorschrift Vreemdelingen).
49. Until 1 January 1994, the Government’s policy was defined in the 1982 Aliens Circular (Vreemdelingencirculaire 1982) and the 1984 Border Guarding Circular (Grensbewakingscirculaire). The competent tribunals (see paragraphs 69-72 below) have consistently held that it was incompatible with general principles of good governance (algemene beginselen van behoorlijk bestuur) to deviate from the policy rules set out in these documents to the detriment of an alien.
50. The Aliens Act was extensively amended by the Act of 23 December 1993 (Staatsblad (Official Gazette) 1993, no. 707) which came into force on 1 January 1994. To accommodate these amendments a new Aliens Circular was issued, the 1994 Aliens Circular (Vreemdelingencirculaire 1994).
51. Special regimes, not relevant to the present case, applied to citizens of the European Union or of the Benelux member States, to nationals of certain other States (not including Zaïre) under bilateral treaties, and to refugees as defined in Article 1 A of the Geneva Convention of 28 July 1951 relating to the Status of Refugees (United Nations Treaty Series - UNTS - no. 2545, vol. 198, pp. 137 et seq.) and Article 1 of the Protocol relating to the Status of Refugees of 31 January 1967 (UNTS no. 8791, vol. 606, pp. 267 et seq.).
52. Under section 6 (1) of the Aliens Act, to be allowed access to the Netherlands an alien had to qualify for admission - that is, either fulfil the requirements of section 8 of the Aliens Act (see paragraph 54 below), or possess a residence or settlement permit (see paragraphs 58 and 63 below) - and hold a valid passport or equivalent identity document containing a visa if a visa requirement applied (see paragraph 55 below).
53. An alien who was refused access to Netherlands territory had to leave the country as soon as possible and could, if necessary, be forcibly removed. If the alien had arrived on board a ship or an aircraft belonging to a shipping company or airline, the alien could be removed by placing him or her on board an outward bound ship or aircraft belonging to the same company or airline (section 7 of the Aliens Act).
54. Under section 8 of the Aliens Act taken together with section 46 of the Aliens Ordinance, aliens who, upon entering the country, had complied with the required formalities at the border were admitted if and for so long as they conformed with the Aliens Act and delegated legislation, had sufficient means to cover the cost of living in the Netherlands and of the return journey, and did not threaten public peace, public order or national security. The right to admission based on section 8 was a temporary right based directly on the law and therefore not conditional on the grant of any permit. However, in principle, a visa was required (see paragraph 55 below) and the duration of the right was limited: to the period of validity of the visa, or to three months in the case of those aliens not subject to visa requirements.
55. Subject to certain exceptions not relevant to the present case, to be granted access to the Netherlands aliens had to hold a valid passport containing a transit visa (transitvisum), valid for up to three days, or a travel visa, valid for up to three months (section 41 (1) of the Aliens Ordinance).
56. To obtain access to the Netherlands with a view to remaining for more than three months, aliens who had not already been granted a residence permit must hold a valid passport containing a provisional residence visa (section 41 (1) of the Aliens Ordinance). A provisional residence visa was valid for a period of up to six months (section 8 of the Aliens Act).
57. A provisional residence visa could be applied for abroad, through a diplomatic or consular representative, or in the Netherlands, via the head of the local police. Applications were decided on by the Minister for Foreign Affairs (section 1 of the Aliens Ordinance and section 7 of the Sovereign Ordinance of 12 December 1813) after consultation with the Minister of Justice. Applications for such a visa were considered according to the same criteria as those applying to applications for a residence permit, since such a visa would only be issued if the alien concerned was expected to be granted such a permit.
58. Aliens wishing to reside in the Netherlands for longer than three months (see paragraph 54 above) had to hold a residence permit (section 9 of the Aliens Act). Such a permit was applied for to, and granted by, the Minister of Justice (section 11 (1) of the Aliens Act). It was valid for up to one year and renewable (section 24 of the Aliens Schedule).
59. A residence permit could be applied for either in the Netherlands (through the head of the local police - section 52 of the Aliens Ordinance) or abroad (through a diplomatic or consular representative). The application had to be submitted by the alien him- or herself or, if he or she was a minor, by his or her legal representative (section 28 (4) of the Aliens Schedule).
60. The decision to grant a residence permit was delegated by the Minister of Justice to the head of the local police in certain cases, including cases where the alien applying for a residence permit already held a provisional residence visa.
In principle, a residence permit was refused an alien who did not already hold a provisional residence visa (1982 Aliens Circular, Chapter A4, para. 3.3; 1994 Aliens Circular, Chapter A4, para. 5.3).
61. A residence permit could be made subject to restrictions (section 11 (2) of the Aliens Act).
62. An alien holding a valid residence permit was allowed to re-enter Netherlands territory after having left it.
63. The Minister of Justice could grant a settlement permit (vergunning tot vestiging) (section 13 of the Aliens Act); such a permit was normally granted only after the alien had been legally resident in the Netherlands for five consecutive years.
After such an initial period, a settlement permit would be granted unless there was no reasonable certainty that the alien would be able to meet the costs of living, or unless he or she had committed serious breaches of public peace or public order or constituted a serious threat to national security.
64. Given the situation obtaining in the Netherlands with regard to population size and employment, government policy was, and remains, aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens were only granted admission for residence purposes if:
a) the Netherlands were obliged under international law to do so, as in the case of nationals of European Union and Benelux member States and refugees covered by the Geneva Convention relating to the Status of Refugees; or
b) this served "essential interests of the Netherlands" (wezenlijk Nederlands belang), e.g. economic or cultural interests; or
c) there were "cogent reasons of a humanitarian nature".
In addition, aliens who, under this policy, were eligible for admission were in principle expected to have sufficient means at their disposal to cover the costs of living and not to threaten public peace or public order or national security.
These were general rules which did not apply in the same way to all categories of aliens, specific criteria having been developed applicable to certain categories (1982 Aliens Circular, Chapter A4, para. 5.1.1.1; 1994 Aliens Circular, Chapter A4, paras. 4.1.2 to 4.1.4).
65. Specific criteria applied to the admission of aliens in connection with the reunification or establishment of families involving spouses, partners or close relatives of Netherlands nationals or aliens holding settlement or residence permits. Under these criteria, it was possible that admission could be granted for the purpose of reuniting or establishing a family even if the applicable conditions had not all been met, if there were "cogent reasons of a humanitarian nature" (1982 Aliens Circular, Chapter B19, paras. 1.1 and 2.5; 1994 Aliens Circular, Chapter B1, para. 1.3).
66. Specific conditions also applied to the admission of foreign foster children, i.e. minors under 18 years of age who were not Netherlands nationals, and who were, or were intended, to be cared for in a family other than that of the parents in such a way that the carers in fact replaced the parents. The applicable rules distinguished two categories, namely children taken into a foster family with a view to adoption and others. The present case concerns the latter category (1982 Aliens Circular, Chapter B18, para. 3.1; 1994 Aliens Circular, Chapter B3, para. 3.1).
The recognised motive for taking on a foster child in this way was a moral obligation of the prospective foster parents vis-à-vis the child, the prospective foster parents normally being close relatives (grandparents, brothers, sisters, aunts, uncles). Additional conditions included the following:
a) in principle, the prospective foster parents to be a married couple;
b) the circumstances to be such that the child could not be cared for by close relatives living in the country of origin except with great difficulty. In principle, this condition would not be met if the child was resident with his or her parents in his or her country of origin in circumstances which, although they reflected less affluence than was enjoyed in the Netherlands, could be considered normal by the standards of the country in question;
c) the prospective foster parents to prove themselves able to provide proper care and upbringing, and to stand surety for the costs caused by the child’s stay and if necessary his or her return journey;
d) documentary evidence to be submitted that the child’s parents or legal representative, and if necessary the national authorities of the child’s country of origin, consented to the child’s staying with the prospective foster parents;
e) a medical certificate to be submitted from which it appeared that the child was not suffering from a dangerous infectious disease, nor from a physical or mental disease or deficiency likely to have long-term effects;
f) the child’s passage to the Netherlands to have been arranged in a responsible way and a provisional residence visa, if required, to have been granted.
However, even if these conditions were met, this possibility was not normally open.
67. Until 1 January 1994, an application for a residence permit for a minor could be filed by the prospective foster or adoptive parents, whether or not they were the minor’s legal representatives (1982 Aliens Circular, Chapter B18, para. 2.3.1).
As of that date, the person making such an application in respect of a minor had to be the minor’s legal representative. If the person applying for a residence permit on behalf of a minor was not the minor’s legal representative, three months were allowed to provide for the minor’s legal representation. That done, the application for a residence permit would be considered (1994 Aliens Circular, Chapter A4, para. 6.1.2.2).
68. The Government’s policy with regard to children arriving at Schiphol Airport who had been refused access appears from a reply by the then Deputy Minister of Justice, Mr A. Kosto, to questions asked by members of parliament about the present case (see paragraph 43 above).
If refugee status was claimed, the child was accommodated in the Netherlands and allowed to await the outcome of proceedings.
If no refugee status was claimed, arrangements were made for the child to be returned. If the child had arrived in the company of an adult, he or she was offered the opportunity to accompany the child on the return journey. Otherwise, the Ministry of Justice, acting in consultation with the Ministry of Foreign Affairs if necessary, would make arrangements for the child to be accompanied on the journey and met in the country of origin. If the child could not be removed immediately, he or she was placed in the care of the Royal Military Constabulary and accommodated in the Schiphol Airport Hotel.
It appeared from the same reply that during the second half of 1993 access was initially refused to twenty-three minors, fifteen of whom were sent back to where they came from. The other eight were subsequently admitted.
69. An administrative appeal may be lodged with the Minister for Foreign Affairs (sections 31 and 33d of the Aliens Act).
A further appeal lies to the Administrative Division of the Hague Regional Court (section 8:1 of the General Administrative Law Act, section 33a of the Aliens Act). No further appeal is allowed (section 33e of the Aliens Act).
70. If the party seeking review is a minor, he or she has to be represented by a legal representative (wettelijke vertegenwoordiger - see paragraphs 73 and 76 below).
71. An administrative appeal against a refusal of a residence permit, or against the imposition of limiting conditions, may be filed with the Minister of Justice (section 31 of the Aliens Act).
A further appeal lies to the Administrative Division of the Hague Regional Court (section 8:1 of the General Administrative Law Act, section 33a of the Aliens Act). The procedure is the same as that outlined in paragraphs 69 and 70 above.
72. An alien who was refused access either at the border or, having arrived by sea or air, at a port or an airport, could bring summary proceedings against the State before the President of the Regional Court. The claim had to be based on the proposition that the refusal constituted a tort (onrechtmatige daad). If the President of the Regional Court accepted that proposition, he could provisionally order that the alien be granted access pending a decision by the competent administrative authorities with regard to an application for a provisional residence visa or a residence permit.
A hearing date was set by the President on an application by the alien’s lawyer.
The bringing of summary proceedings did not in itself have suspensive effect and the plaintiff was not normally allowed to await the outcome of such proceedings in the Netherlands (1984 Border Guarding Circular, Chapter A6, para. 4.5.5).
73. Minors are defined in Netherlands law as persons who have not yet reached the age of 18 and who are not, and have not been, married (Article 1:233 of the Civil Code). They cannot independently perform legal acts (rechtshandelingen) except in so far as the law determines otherwise (Article 1:234 para. 1); to do so they must normally be represented by a legal representative.
74. The determination whether a foreign national is a minor or not is normally made with reference to that person’s national law (see the judgment of the Supreme Court of 1 May 1963, Netherlands Law Reports - Nederlandse Jurisprudentie, NJ - 1964, no. 287).
75. A minor’s parents are normally his legal representatives (Article 247 para. 1).
76. If, for whatever reason, the parents cannot act as such, a guardian and a co-guardian (toeziende voogd) must be appointed (Articles 1:279 and 1:295 of the Civil Code). In cases not involving the divorce of the minor’s parents or the annulment of their marriage, or the removal of authority from a parent or guardian for reasons of incompetence or abuse, the competent court is the District Court (Articles 1:295, 1:307 para. 1, 1:309).
The District Court appoints a guardian and a co-guardian of its own motion or on an application by the minor’s relatives, the Child Care Board (Raad voor de Kinderbescherming), the child’s debtors or other interested persons (Article 1:299).
77. The determination whether a minor who has a foreign nationality is legally represented is normally made with reference to the law of the State of the minor’s habitual residence (Article 2 of the Convention concerning the powers of authorities and the law applicable in respect of the protection of infants (see paragraph 81 below), applied by analogy).
78. A temporary guardian and co-guardian may be appointed, inter alia, if it is unclear whether the minor’s parents are alive or whether there is a guardian or if their whereabouts are unknown (Article 1:297).
79. In the above cases, the competent District Court is that within whose district the minor is domiciled or has his or her habitual residence, or, if the minor does not habitually reside in the Netherlands, the District Court of The Hague (Articles 957 and 966a of the Code of Civil Procedure - Wetboek van Burgerlijke Regtsvordering).
However, if the minor is not a Netherlands national, the Netherlands courts must decline jurisdiction if the case has insufficient connection with the Netherlands legal order (onvoldoende aanknoping met de rechtssfeer van Nederland - at the relevant time, Article 429c para. 11 of the Code of Civil Procedure).
80. The Hague Convention concerning the powers of authorities and the law applicable in respect of the protection of infants of 5 October 1961 (UNTS no. 9431, vol. 658, pp. 143 et seq.) - to which the Netherlands is a party - defines "infants" (mineurs in the French text, which is authentic) as "any person who has that status, in accordance with both the domestic law of the State of his nationality and that of his habitual residence" (Article 12).
81. Article 1 of the Hague Convention provides that the judicial or administrative authorities of the State of the habitual residence of an "infant" have power to take measures directed to the protection of his or her person or property. In so doing they apply their own law (Article 2).
However, Article 3 provides that a relationship subjecting the "infant" to authority which arises directly from the domestic law of the State of the "infant"‘s nationality shall be recognised in all the contracting States, including the State of the "infant"‘s habitual residence.
82. The Netherlands Supreme Court (Hoge Raad) has construed Article 3 of the Hague Convention in such a way that it does not prevent the Netherlands authorities - if the Netherlands are the State of the "infant"‘s habitual residence - from taking what measures are necessary for his or her protection and from applying their domestic law (see its judgments of 1 July 1982, NJ 1983, no. 201, and 18 November 1983, NJ 1984, no. 343).
NON_VIOLATED_ARTICLES: 3
8


ITEMID: 001-109077
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF VOLODARSKIY v. RUSSIA
IMPORTANCE: 4
CONCLUSION: No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
JUDGES: Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
TEXT: 5. The applicant was born in 1969 and lives in Moscow.
6. During the evening of 14 October 2003 the applicant assaulted Ms G. in an attempt to steal her handbag. After searching the surrounding streets, Ms G. and her acquaintance, Mr Sh., located the applicant at a bus stop nearby.
7. As quoted in the report of the internal security office of the Interior Department of the South-West Administrative District of Moscow of 19 December 2003 (see paragraph 21 below), police officers M. and S., who arrived at the scene after a telephone call from Ms G., stated that when they arrived they saw that the applicant’s head had been bleeding and his jacket was torn. They handcuffed him when he attempted to escape.
8. After taking the applicant to Cheremushinskoye police station, the police officers called an ambulance which took him to a hospital for first aid to be administered. Afterwards he was taken back to the police station and released on the following day after questioning.
9. On 17 October 2003 criminal proceedings were instituted by the investigative department of Cheremushinskoye police station against the applicant in connection with the incident of 14 October 2003. On the same date the investigator drew up a record of the inspection of Ms G.’s handbag describing its appearance and contents which included a cell phone and a certain amount of money. The record also included an estimate of the cost of the objects. Two attesting witnesses, P. and K., put their signatures on the record of inspection and on the decision of the same date to include in the body of evidence the above-mentioned objects.
10. The records of the questioning of Ms G. and Mr Sh. of 3 November 2003 contain the following identical statements:
“[The applicant] tried to run away but Sh. stopped him and grabbed his arms. [The applicant] made several other attempts at absconding before the arrival of the police, which is why Sh. had to physically restrain him, and that might have caused some bodily injury ... Upon their arrival the police handcuffed [the applicant].”
11. When being questioned on 3 December 2003 as a suspect, the applicant stated the following:
“The woman pushed me in the chest, and the man hit me on the head with the handle of a handgun, causing bleeding ... The woman walked to a nearby shopping centre and returned with two security guards, after which the three men started beating me. Then the woman used her mobile phone to call the police ... I was then taken to Cheremushkinskoye police station where I was handcuffed to the iron bar of a cell.
In the questioning office ... I was told to sit down on the floor. On several occasions I tried to get up and the police officer took a truncheon and hit me across the legs. The other police officers started mocking me and told me to sing [a children’s song] to identify my voice, which I did as I feared that I would be subjected to physical violence.”
12. On 4 December 2003 an expert forensic report concluded that he suffered from “shift-like” schizophrenia with pronounced psychological effects.
13. On 27 May 2004 the Cheremushinskiy District Court of Moscow (“the District Court”), while considering the criminal charge against the applicant, refused a request by the applicant’s counsel to summon the attesting witnesses P. and K., who were allegedly ex-police officers, for lack of sufficient grounds to question their identity. Counsel further demanded that the signed documents be struck out of the list of evidence as they were improperly drawn up. This request was also dismissed as the court held that the documents had been drawn up in accordance with the law.
14. On 28 May 2004 the District Court found that the applicant had committed attempted robbery with assault, but relieved him of criminal liability on account of his mental-health status and ordered his placement in a psychiatric hospital. The court based its conclusion on the statements of Ms G. and Mr Sh. made in court, as well as various procedural documents, including the record of inspection of Ms G.’s belongings and the decision to include the objects in the body of evidence signed by the attesting witnesses. It also referred to the statement made by the applicant’s mother, who acted as his lawful representative, to the effect that the applicant had been beaten up by strangers who had subsequently turned him in to the police.
15. On 11 August 2004 the Moscow City Court (“the City Court”) upheld the above-mentioned decision on appeal.
16. On 16 October 2003 the applicant’s mother complained to the prosecutor of the Cheremushinskiy District of Moscow, requesting the opening of criminal proceedings in connection with the applicant’s alleged ill-treatment in custody. On an unspecified date her complaint was referred by the prosecutor to the internal security office of the Interior Department of the South-West Administrative District of Moscow for an inquiry.
17. On 16 October 2003 the applicant went to a municipal hospital which recorded multiple bruises on his head, neck and torso, and an abrasion on the back of his head.
18. On 18 October 2003 he attended at another hospital which recorded an infected wound on his head and hypoesthesia of the fingers of the right hand.
19. Both records contain the following references:
“According to the [applicant], on 14 October 2003 he was beaten up by the officers of Cheremushinskoye police station”.
20. On 4 December 2003 the investigator in charge of the applicant’s criminal case commissioned an expert forensic report on account of the applicant’s allegations of ill-treatment made in the course of the criminal investigation against him. In his order he indicated that the experts should examine the available medical documents. He also referred the complaint of ill-treatment for examination to the prosecutor’s office of the Cheremushinskiy District of Moscow.
21. On 19 December 2003 the internal security office of the Interior Department of the South-West Administrative District of Moscow completed the inquiry prompted by the applicant’s mother’s complaint, producing a report of the same date. In particular, the inquiring officer stated as follows:
“Police officers M. and S. questioned in the course of the inquiry stated that they had put handcuffs on [the applicant] as during the apprehension the latter had put up resistance and had tried to hit M.
The above-mentioned officers also stated that when they had discovered that [the applicant] had a head injury, they called an ambulance after escorting [the applicant] to the police station.
After [the applicant] was administered medical aid at Moscow municipal hospital no. 1, he was again brought to Cheremushinskoye police station.
Duty officer Shi. and investigator G. stated that there had been no unlawful actions during [the applicant’s] apprehension and questioning.
...
Thus, the allegations of unlawful actions by police officers were not proved during the inquiry, and the use of handcuffs was not in breach of Article 14 of the Police Act.
However, given that the complaint refers to unlawful actions by police officers which fall within the competence of the prosecutor’s office, [I] suggest terminating the internal inquiry, sending the material collected by the internal inquiry to the Cheremushinskiy District prosecutor’s office for taking a decision in accordance with the law, and informing the parties concerned about the decision.”
22. On 24 December 2003 the State forensic experts issued a conclusion which reiterated the medical data as described above (see paragraphs 17 and 18 above) and stated that the recorded injuries had not led to any consequences for the applicant’s health. The experts could not determine the circumstances or the date of the injuries due to the lack of comprehensive data.
23. On 9 January 2004 the prosecutor of the Cheremushkinskiy District of Moscow, relying on the statements made by police officers M., S. and Shi. in the context of the investigation by the internal security office, decided not to institute criminal proceedings in respect of the applicant’s alleged ill-treatment.
24. On 22 September 2004 the applicant, his mother and counsel challenged the above decision in court.
25. On 18 November 2004 the District Court heard the applicant’s mother, his counsel and a representative of the prosecutor’s office and dismissed the complaint as unfounded after concluding that the applicant’s injuries had been caused by the third parties who had restrained him at the scene. In particular, the court said:
“As follows from the statements given by Ms G., Mr Sh. and police officers S. and M., at the moment of the arrest [the applicant] ... had injuries which had occurred before arrival of the police. [The applicant’s mother] ... also confirmed at the hearing that her son had been beaten up with a handgun before arrival of the officers of Cheremushkinskoye police station.”
26. On 3 February 2005 the City Court upheld the above decision on appeal.
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-115054
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: B.V. v. SWEDEN
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
TEXT: The first and second applicants are a married couple of Serbian nationality and originating from Kosovo. They were born in 1978 and 1982, respectively. The third and fourth applicants are their children, born in 2004 and 2007, respectively. The family is currently in Sweden. They were represented before the Court by Mr. M. Ekelöf, a lawyer practising in Växjö.
The Swedish Government (“the Government”) were represented by their Agent, Ms H. Kristiansson, of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
In March 2004, the first and second applicants applied for asylum and residence permits in Sweden. Before the Migration Board (Migrationsverket), they submitted the following. The first applicant had performed his military service in 1998-1999, and had been suspected by Albanians of having taken part in a massacre where Kosovo Albanians had been killed. Although he had not been present, the couple had been harassed and threatened by Albanians where they lived. People had thrown rocks at them and, during her pregnancy, the second applicant had received numerous death threats and had been beaten on several occasions. They had turned to the local police several times, but had not received any help. In March 2004 a neighbour had warned them that their house would be attacked and later they had been visited by KFOR or UNMIK police, who had told them to flee. They had stayed with the UNMIK police for two days before leaving the country.
On 13 September 2004, the Migration Board rejected the application. The Board found that the applicants had a well-founded fear of persecution in Kosovo and thus could not be expected to return there. However, it considered that they could relocate to another area within Serbia and Montenegro since they were ethnic Serbs. The fact that they did not have any connection to another area was not sufficient to grant them leave to remain in Sweden.
The applicants appealed against the decision to the Aliens Appeals Board (Utlänningsnämnden) and added that the first applicant had witnessed a massacre. Pictures of him in his military uniform had been published by CNN and the BBC in 2000 and his name had been published in the local newspapers in connection with the massacre. He was therefore known as a traitor throughout Serbia and Montenegro. Moreover, the family lacked a social network outside Kosovo.
On 15 November 2005, the Aliens Appeals Board upheld the Migration Board’s decision in full.
Following the enactment of an interim amendment to the Aliens Act, the applicants requested to have their case reviewed and referred mainly to discrimination against Serbs in Kosovo. On 21 August 2006, the Migration Board decided not to grant them residence permits in Sweden on the basis of the interim amendment.
In 2007 and 2008, the applicants twice applied for re-examination of their case, claiming that there were impediments to the enforcement of their deportation order. On each occasion, the Migration Board rejected the applications.
On 11 November 2009, the deportation order against the applicants became time-barred and they lodged a new application for asylum and residence permits. They stated that their only connection to Serbia was their ethnicity and that they had integrated into Swedish society. They submitted documents from the third applicant’s school, stating that he was insecure but developing well, and that he was learning Swedish.
On 22 September 2010, the Migration Board rejected the application. Through contacts with the Serbian Ministry of the Interior, the Board had been informed that the first and the second applicants were registered as Serbian nationals and as residents in Kragujevac in Serbia. In relation to Kosovo, the Board found that there were no longer any threats against the applicants there and thus no risk if they returned. As concerned Serbia, it noted that the applicants had not invoked any individual grounds for fear. Since they were nationals of Serbia and residents there, there were no grounds for them not to return. Moreover, the Board noted that the applicants had remained in SwedenSweden. In reaching this decision, it considered it to be in the best interests of the children to accompany their parents to a country where they had relatives and spoke the language.
The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that they had lived in Kosovo but the only reason they had been registered in Serbia was to obtain financial aid from the government. Moreover, it would be very difficult for them to settle in Serbia. The second applicant also suffered from poor mental health and was scheduled to receive psychiatric care after she had given birth to a stillborn child. They wanted to be near the child’s grave.
On 27 May 2011 the Migration Court upheld the Board’s decision. It agreed with the Board that the applicants were not in need of protection in relation to either Kosovo or Serbia. Moreover, it found that the second applicant’s state of health was not so serious that she could be granted a residence permit on that ground. In conclusion, there were no reasons to grant the family leave to remain, even considering that the case involved children.
Upon further appeal, on 27 July 2011, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal.
The basic provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the 2005 Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the 2005 Act”) which replaced, on 31 March 2006, the old Aliens Act (Utlänningslagen, 1989:529). Both the old Aliens Act and the 2005 Act define the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.
Chapter 5, Section 1, of the 2005 Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, Section 1, of the 2005 Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals.
By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the 2005 Act).
Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6 of the Aliens Act). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. In the preparatory works to this provision (travaux préparatoires 2004/05:170, pp. 190-191), life-threatening physical or mental illness for which no treatment can be given in the alien’s home country could constitute a reason for granting a residence permit.
As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the 2005 Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the 2005 Act).
Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the 2005 Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the 2005 Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the 2005 Act).
Under the 2005 Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances; the Migration Board, the Migration Court and the Migration Court of Appeal (Chapter 14, Section 3, and Chapter 16, Section 9, of the 2005 Act). Hence, upon entry into force on 31 March 2006 of the 2005 Act, the Aliens Appeals Board ceased to exist.


ITEMID: 001-88310
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: WILLIAMS v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Roger Williams, is a British national who was born in 1947 and lives in Bristol. He was represented before the Court by Ms C. Pritchard, from the Bristol Citizens Advice Bureau. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 14 October 2000. On 4 May 2001, the applicant made a claim for widows’ benefits namely Widow’s Pension. On 11 June 2001 the applicant was informed that his claim had been disallowed as he was not a woman. This decision was confirmed by an appeal tribunal on 26 November 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.