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You are here: BAILII >> Databases >> European Court of Human Rights >> NSONA v. THE NETHERLANDS - 23366/94 [1996] ECHR 62 (28 November 1996) URL: http://www.bailii.org/eu/cases/ECHR/1996/62.html Cite as: [1996] ECHR 62, 32 EHRR 170, (2001) 32 EHRR 170, (2001) 32 EHRR 9, 32 EHRR 9 |
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In the case of Nsona v. the Netherlands (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr L.-E. Pettiti,
Mr J. De Meyer,
Mr S.K. Martens,
Mr J.M. Morenilla,
Mr M.A. Lopes Rocha,
Mr J. Makarczyk,
Mr B. Repik,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 26 June and 26 October 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 63/1995/569/655. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).
________________
PROCEDURE
1. The case was referred to the Court by the applicants,
Bata Nsona and Francine Nsona, who are Zaïrean nationals, on
4 July 1995, within the three-month period laid down by Article 32
para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It
originated in an application (no. 23366/94) against the Kingdom of the
Netherlands, which they had lodged with the Commission under Article 25
(art. 25) on 25 January 1994.
The object of the application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 3 and 8 of the Convention
(art. 3, art. 8).
2. In response to the enquiry made in accordance with Rule 35
para. 3 (d) of Rules of Court B, the applicants designated the lawyer
who would represent them (Rule 31).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the
Vice-President of the Court (Rule 21 para. 4 (b)). On
29 September 1995, in the presence of the Registrar, the President of
the Court, Mr R. Ryssdal, drew by lot the names of the other
seven members, namely Mr L.-E. Pettiti, Mr B. Walsh, Mr J. De Meyer,
Mr M.A. Lopes Rocha, Mr G. Mifsud Bonnici, Mr J. Makarczyk and
Mr U. Lohmus (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43). Subsequently Mr J.M. Morenilla and Mr B. Repik,
substitute judges, replaced Mr Walsh and Mr Mifsud Bonnici, who were
unable to take part in the consideration of the case.
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
Netherlands Government ("the Government), the applicants' lawyer and
the Delegate of the Commission on the organisation of the proceedings
(Rules 39 para. 1 and 40). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 1 March 1996. No
memorial was received from the applicants within the time-limit set by
the President.
On 12 April 1996 the Commission produced certain documents from
the file of the proceedings before it which the registry had sought
from it on the instructions of the President.
A document setting out the applicants' claims under Article 50
of the Convention (art. 50) was received at the registry on
23 April 1996.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
21 May 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr H. von Hebel, Assistant Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr A.P. van Wiggen, Ministry of Justice, Adviser;
(b) for the Commission
Mr H.G. Schermers, Delegate;
(c) for the applicants
Mr W.A. Venema, advocaat en procureur, Counsel.
The Court heard addresses by Mr Schermers, Mr Venema and
Mr von Hebel and also replies to its questions.
AS TO THE FACTS
I. Particular circumstances of the case
A. Introduction
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.
B. Francine's alleged family ties with Bata Nsona and other
persons
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.
C. Events following the arrival of Francine and Bata Nsona in the
Netherlands
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.
D. Subsequent developments
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 co-guardian (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).
II. Relevant domestic law and practice
A. The admission of aliens and rights of residence
1. General
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).
2. Visa requirements
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.
3. The residence 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.
4. The settlement permit
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.
5. Relevant policy
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.
6. Legal remedies
(a) Refusal of a transit visa, travel visa or
provisional residence visa
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).
(b) Refusal of a residence permit
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.
(c) Refusal at the border of access to
Netherlands territory
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).
B. Legal representation of a minor
1. The Civil Code
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).
2. The Convention concerning the powers of authorities and
the law applicable in respect of the protection of
infants
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).
PROCEEDINGS BEFORE THE COMMISSION
83. Bata Nsona and Francine Nsona applied to the Commission on
25 January 1994. They relied on Articles 3, 8 and 13 of the Convention
(art. 3, art. 8, art. 13), alleging that Francine's removal from the
Netherlands, and the conditions under which it took place, constituted
inhuman treatment and violated their right to respect for family life
and that they had no effective remedy before a national authority
available to them. They also relied on Article 6 of the Convention
(art. 6), complaining that they had been denied access to a tribunal.
84. On 6 July 1994 the Commission declared the application
(no. 23366/94) admissible in so far as it concerned Articles 3, 8
and 13 (art. 3, art. 8, art. 13) and inadmissible for the remainder.
In its report of 2 March 1995 (Article 31) (art. 31), it expressed the
opinion that there had been no violation of Article 3 (art. 3) as
regards the first applicant (twenty votes to four), that there had been
no violation of Article 8 (art. 8) (twenty-two votes to two), and that
there had been no violation of Article 13 (art. 13) (unanimously).
The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this
judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and Decisions 1996-V),
but a copy of the Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
85. The applicants' representative, speaking at the Court's
hearing, concluded that Articles 3 and 8 of the Convention (art. 3,
art. 8) had been violated. As to Article 13 (art. 13) he said that he
had no further remarks to make and that he relied on the decision of
the Court.
The Government concluded their memorial by expressing the
opinion that there had been no violation of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)
86. The applicants alleged that the removal of Francine from the
Netherlands to Zaïre, and the conditions under which it was carried
out, constituted "inhuman treatment", contrary to Article 3 of the
Convention (art. 3), which provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
Neither the Commission nor the Government shared this view.
A. Arguments before the Court
1. The applicants
87. The applicants alleged that Francine - who at that time was
only 9 years old - had been removed from the Netherlands to Switzerland
in the company of a total stranger, who moreover had disappeared
without trace from Zürich Airport. She had then been sent on from
there to Zaïre on her own.
In addition, the Netherlands Government had failed to provide
for a responsible person to pick her up at the airport in Kinshasa,
thus exposing her to the risk of falling into the hands of persons who
might not have her best interests at heart. Although admittedly
Francine had been received properly, that was in no way due to the
actions of the Netherlands authorities.
This situation was aggravated by the length of time which
Francine's ordeal had taken. It had begun on 29 December 1993, when
Francine was refused access to the Netherlands. It had ended no sooner
than 7 January 1994, the date on which she had arrived in Kinshasa,
after which she had remained in the hands of the
immigration authorities for another day.
Bata Nsona's refusal to accompany Francine back could not be
criticised. Bata Nsona had arrived in the Netherlands in 1989,
claiming refugee status; the Government had granted her a
residence permit on humanitarian grounds in 1992, which was relatively
quick. In the applicants' submission this implied recognition that
Bata Nsona herself ran a real risk of inhuman or degrading treatment
or punishment if she were forced to return to Zaïre. Moreover, in the
present case she would have been bearing a Zaïrean passport which the
Netherlands authorities themselves had found to have been tampered
with.
The applicants claimed that they could not be held responsible
for having caused the situation to arise by failing to apply for a
provisional residence visa for Francine while the latter was still in
Zaïre. It was not possible for them to do so, since Bata Nsona was not
Francine's guardian; nor could she apply for guardianship as long as
Francine remained resident in Zaïre.
2. The Government
88. The Government denied that Francine's removal to Zaïre had
exposed her to any danger of inhuman or degrading treatment. Her
position was the same as that of any other Zaïrean citizen who had not
been involved in activities aimed at the overthrow of the
Zaïrean Government.
89. As to the way in which Francine's removal was effected, the
Government drew attention to the fact that she had appeared at the
border without a visa and that an attempt had been made to bring her
into the Netherlands on a forged or falsified passport. If the
applicants had followed the normal immigration procedure, it would have
been unnecessary for the Netherlands authorities to refuse Francine
access at the border.
Secondly, Bata Nsona had been offered the opportunity to
accompany Francine back to Zaïre. This she had ultimately refused to
do. The immigration authorities had then asked Ms M.M. to escort
Francine back; Ms M.M. had likewise been refused access to the country
and had been travelling together with Bata Nsona and Francine. Ms M.M.
had in fact escorted Francine until Francine's journey was interrupted
in Zürich at the request of the applicants' lawyer.
Finally, on 6 January 1994 - the day on which Francine left
Zürich for Kinshasa - the Netherlands Ministry of Foreign Affairs had
tried to arrange, via the Netherlands Embassy, for Francine to be met
at the airport. On 7 January the Netherlands Embassy had asked the
Red Cross to assume responsibility for Francine. This request was
withdrawn when it emerged that arrangements had been made by Swissair.
90. The Government admitted that the conditions of Francine's
return to Zaïre had entailed a certain hardship and that greater care
should have been taken to ensure that Francine was accompanied on the
journey back. However, the Government were of the view that the case
was not such as to engage the responsibility of the Netherlands under
Article 3 (art. 3).
3. The Commission
91. The Commission accepted that Francine's removal to Zaïre might
have exposed her to some hardship but not to the risk of treatment
proscribed by Article 3 (art. 3).
On the other hand, the Netherlands Government had failed to
investigate Francine's personal situation in Zaïre and had moreover
failed to ensure her safety upon her return. Given the fact that
Francine was a 9-year-old child allegedly without any living relatives
in her country of origin, these were measures which the Government
might have been expected to take before removing her. However, this
failure to take appropriate action had not caused such hardship as to
violate Article 3 (art. 3).
B. The Court's assessment
1. General principles
92. The applicable principles which emerge from the Court's
case-law are the following:
(a) States have the right, as a matter of well-established
international law and subject to their treaty obligations including
Article 3 of the Convention (art. 3), to control the entry, residence
and expulsion of aliens (see the Vilvarajah and Others
v. the United Kingdom judgment of 30 October 1991, Series A no. 215,
p. 34, para. 102).
(b) Expulsion - or removal - by a Contracting State of a
non-national may give rise to an issue under Article 3 (art. 3), and
hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the person
concerned faced a real risk of being subjected to torture or to inhuman
or degrading treatment or punishment in the country to which he or she
was returned (see, mutatis mutandis, the above-mentioned
Vilvarajah and Others judgment, p. 34, para. 103).
(c) Since the nature of the Contracting States'
responsibility under Article 3 (art. 3) in cases of this kind lies in
the act of exposing an individual to the risk of ill-treatment, the
existence of the risk must be assessed primarily with reference to
those facts which were known or ought to have been known to the
Contracting State at the time of the expulsion (or, as in the
present case, the removal); the Court is not precluded, however, from
having regard to information which comes to light subsequent to the
expulsion (or removal). This may be of value in confirming or refuting
the appreciation that has been made by the Contracting Party of the
well-foundedness or otherwise of the applicants' fears
(see, mutatis mutandis, the Cruz Varas and Others v. Sweden judgment
of 20 March 1991, Series A no. 201, p. 30, para. 76).
(d) Ill-treatment must attain a minimum level of severity if
it is to fall within the scope of Article 3 (art. 3). The assessment
of this minimum is, in the nature of things, relative; it depends on
all the circumstances of the case, such as the nature and context of
the treatment, the manner and method of its execution, its duration,
its physical and mental effects and, in some instances, the sex, age
and state of health of the victim (see, among other authorities, the
above-mentioned Cruz Varas and Others judgment, p. 31, para. 83).
2. The refusal to allow Francine access to Netherlands
territory
93. Francine and Bata Nsona arrived at Schiphol Airport on
29 December 1993. Although Bata Nsona had a residence permit, Francine
did not; nor did she have any kind of visa which would have entitled
her to access to the Netherlands (see paragraph 18 above). The entry
of Francine as Bata Nsona's child in the latter's passport appeared to
be forged (see paragraphs 15, 54 and 55 above).
It must therefore be recognised that the
Netherlands authorities were in principle entitled to refuse Francine
access to the country provided that such refusal was not inconsistent
with the obligations of the respondent State under the Convention.
3. The way in which Francine's removal was effected
94. After Francine was refused access to the Netherlands, she was
taken to the Schiphol Airport Hotel. She stayed there, under the
supervision of the Royal Military Constabulary, until her removal was
effected on 31 December 1993 in the afternoon (see paragraphs 18 and 24
above).
95. On 30 December 1993 the Netherlands authorities offered
Bata Nsona the opportunity to accompany Francine on a flight back to
Zaïre, on a ticket provided by Swissair. She initially accepted but
later changed her mind (see paragraphs 19 and 21 above).
96. Before the Court, the applicants drew attention to the fact
that Bata Nsona had arrived in the Netherlands in 1989 claiming
refugee status. In 1992 she had been granted a residence permit on
humanitarian grounds, which according to the applicants reflected
recognition by the authorities that Bata Nsona would be in real danger
if forced to return to Zaïre.
Be that as it may, the fact remains that she arrived on the
same flight as Francine, travelling under her own name and on a
Zaïrean passport that had apparently been issued in Kinshasa the
previous day (see paragraph 15 above).
Nor has any evidence been put forward to support the vague
suggestion that Bata Nsona might suffer ill-treatment at the hands of
the Zaïrean authorities for the reason that the entry of Francine in
her passport was irregular.
In these circumstances the separation of Francine and
Bata Nsona cannot be imputed to the respondent State.
97. After Bata Nsona had refused to accompany Francine back to
Zaïre, the Netherlands authorities asked another adult to do so
(see paragraph 25 above). Before the domestic courts the applicants
denied that the person in whose company Francine arrived in Zürich was
Ms M.M. but before the Court they no longer did so.
On the other hand, the applicants stated before the Court that
Bata Nsona and Ms M.M. were strangers. They denied that copies of
documents relating to Ms M.M. were found in Bata Nsona's luggage. The
Commission's file, however, contains a copy of a note by an officer of
the Royal Military Constabulary attesting to the fact that such copies
were in fact found there (see paragraph 16 above). In these
circumstances the Court accepts that the authorities could reasonably
assume that there existed a relationship between Ms M.M. and Bata Nsona
sufficient to justify entrusting the escorting of Francine back to
Kinshasa to Ms M.M.
98. Francine and Ms M.M. travelled together as far as Zürich.
Whether Ms M.M. flew on to Kinshasa or absconded, as the applicants
allege (see paragraph 25 above), the fact is that Francine was allowed
to remain at Zürich Airport until 6 January at the request of the
applicants' lawyer (see paragraph 27 above), who must therefore bear
part of the responsibility for the length of Francine's ordeal if not
for the fact that she travelled unaccompanied from then on.
99. Francine's seven-day journey back to Kinshasa must have been
a distressing experience. She was however in the hands of the
Netherlands authorities for as long as she was at Schiphol Airport and
in a Swissair nursery while she was in Zürich. In any event it has not
been suggested that Francine sustained any damage, however slight, to
her mental or physical health.
On the facts of the case, the Court finds that the way in which
Francine's removal was effected did not constitute treatment of such
a nature as to make it "inhuman or degrading" as these expressions are
to be understood in the context of Article 3 (art. 3).
4. The risk to which Francine was exposed upon return to
Zaïre
100. This aspect of the case revolves around the allegation that the
Government did not take sufficient account of the possibility that
Francine might not be taken proper care of upon her return to Zaïre.
It was not alleged that Francine had anything to fear from the
Zaïrean authorities.
101. When she arrived at Kinshasa Airport on 7 January 1993,
Francine was met by a business relation of Swissair, who turned her
over to the Zaïrean immigration authorities (see paragraphs 31 and 32
above). The following day she was taken to the home of Mr Mbemba and
Ms Bakangadio, with whom she had stayed before travelling to the
Netherlands (see paragraph 32 above).
On 6 January the Netherlands authorities made an unsuccessful
attempt to arrange through the Netherlands Embassy in Kinshasa for
Francine to be met. On 7 January the Embassy asked the Red Cross to
assume responsibility for Francine. This request was withdrawn when
it emerged that other arrangements had been made (see paragraphs 31
and 32 above).
102. Given the fact that arrangements were made by Swissair for
Francine to be met at Kinshasa Airport and that these proved adequate,
the Court is of the opinion that there is insufficient ground for
reproaching the Netherlands Government for not having acted with due
diligence.
5. Conclusion
103. The most striking features of the case are the haste with which
the Netherlands authorities gave effect to their decision to remove
Francine from the Netherlands and their apparent willingness to hand
over all responsibility for her welfare as soon as she had left
Netherlands territory to others (Ms M.M. and especially Swissair). In
a case involving a 9-year-old girl, such an attitude is certainly open
to criticism, as the Government in fact admitted (see paragraph 90
above).
Nevertheless, in the circumstances of the present case the
Netherlands cannot be held responsible for treating Francine in such
a way as to warrant a finding that she has been the victim of
"inhuman or degrading treatment" or for exposing her to the danger
thereof.
There has accordingly not been a violation of Article 3
(art. 3).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)
A. The Government's preliminary objection
104. The Government stated that since Bata Nsona had been appointed
temporary guardian of Francine (27 June 1995 - see paragraph 45 above),
and since Francine had been granted a residence permit to live in the
Netherlands as Bata Nsona's foster child (1 December 1995 -
see paragraph 46 above), the relationship between Bata Nsona and
Francine had been recognised by law.
In the Government's contention, this had "deprived the
applicants' complaints in respect of Article 8 (art. 8) of any
substance whatever, and ... they [could] no longer be regarded as
victims in this regard".
105. The events relied on by the Government occurred after the
Commission adopted its report (2 March 1995 - see paragraph 84 above).
They therefore could not have been invoked at an earlier stage of the
proceedings and there is no estoppel.
106. The word "victim" in the context of Article 25 of the
Convention (art. 25) denotes the person directly affected by the act
or omission in issue, the existence of a violation of the Convention
being conceivable even in the absence of prejudice; prejudice is
relevant only in the context of Article 50 (art. 50). Consequently,
a measure by a public authority reversing or mitigating the effect of
the act or omission alleged to be in breach of the Convention in
principle deprives such a person of his status as a victim only where
the national authorities have acknowledged, either expressly or in
substance, and then afforded redress for, such breach (see, among many
other authorities, the Lüdi v. Switzerland judgment of 15 June 1992,
Series A no. 238, p. 18, para. 34).
107. It is true that the Rotterdam District Court's decision of
27 June 1995 appointing Bata Nsona as Francine's temporary guardian and
the grant of a residence permit to Francine on 1 December 1995 put an
end to the situation complained of by the applicants. However, it does
not appear that these decisions were intended to put an end to, and
afford redress for, any violation of the Convention; they did not
reverse or compensate for any of the measures which led to the
applicants' separation between 31 December 1993 and 12 January 1995
(see, mutatis mutandis, the Moustaquim v. Belgium judgment of
18 February 1991, Series A no. 193, p. 17, para. 33). Indeed, far from
acknowledging a violation, the Government maintained before the Court
that no breach of Article 8 (art. 8) had taken place.
The preliminary objection must therefore be dismissed.
B. The merits of the complaint
108. The applicants alleged that Francine was prevented from
establishing "family life" with her only surviving relative, contrary
to Article 8 of the Convention (art. 8), 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."
Neither the Government nor the Commission accepted this
allegation.
1. Arguments before the Court
(a) The applicants
109. According to the applicants, family life, or at least a
beginning of family life, existed between them at the time of the
events complained of. They stated that Bata Nsona was Francine's
closest surviving relative, being the sister of Francine's mother
Ndombe Nsona. The applicants' family ties were in their view
sufficiently proved by the record of Bata Nsona's interview with the
immigration authorities in 1989 (see paragraph 11 above), in which her
statement was recorded to the effect that at that time she had a sister
called Ndombe, and by the handwritten document claimed to be
Ndombe Nsona's will (see paragraph 12 above).
(b) The Government
110. The Government stated that the Netherlands authorities had been
confronted from the outset with uncertainty as to whether, and in what
way, Francine was related to other persons involved in the case. The
applicants had themselves contributed to this uncertainty by attempting
to pass Francine off as Bata Nsona's daughter (see paragraph 15 above).
Before travelling to the Netherlands, Francine had lived for
the most part with Mr Mbemba and Ms Bakangadio. It had been claimed
that they were relatives of a business associate of Francine's late
father but it had also been suggested that they might even be her
parents. Mr Mbemba and Ms Bakangadio had actually claimed to be
unaware of Bata Nsona's very existence, and a fortiori of any request
made to her by Francine's mother (see paragraph 13 above). Moreover,
no death certificate was ever produced for either of Francine's parents
(see paragraph 10 above).
According to the Government, there had been no family life
between Francine and Bata Nsona "in a form protected by Article 8 of
the Convention (art. 8)".
(c) The Commission
111. The Commission confined itself to observing that when Francine
arrived in the Netherlands, she was falsely claimed to be Bata Nsona's
child (see paragraph 15 above). It also considered the allegation that
Francine was in fact Bata Nsona's niece to be unsubstantiated. There
had therefore, in its opinion, been no interference with the
applicants' right to respect for their family life.
2. The Court's assessment
112. Upon arrival at Schiphol Airport the applicants presented a
Zaïrean passport in the name of Bata Nsona, apparently issued the
previous day, in which Francine had been entered as her child. When
this entry was found by the Royal Military Constabulary to be
apparently forged, the applicants admitted that Francine was in fact
not Bata Nsona's daughter and claimed instead that she was her niece
(see paragraph 15 above). Such has been their claim ever since.
113. In the Court's opinion, whatever the true situation, the
applicants could reasonably have been expected to disclose it to the
Netherlands immigration authorities immediately upon arrival. Instead
they resorted to deceit. The Netherlands authorities cannot be blamed,
once this was discovered, for refusing to accept allegations
unsupported by evidence.
114. In the circumstances of the present case no interference with
the applicants' right to respect for their family life can be imputed
to the respondent State.
There has accordingly been no violation of Article 8 (art. 8).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
115. In their application to the Commission, the applicants also
relied on Article 13 of the Convention (art. 13).
In their letters of 28 June and 19 July 1995 referring the case
to the Court under Article 48 of the Convention (art. 48) (as amended
in respect of the Netherlands by Article 5 of Protocol No. 9 (P9-5)),
the applicants stated that they wished to confine the scope of the case
to the alleged violations of Articles 3 and 8 of the Convention
(art. 3, art. 8).
116. The Court does not find it necessary on this occasion to give
a general ruling on the question whether it is permissible for an
applicant to limit a referral to the Court to some of the issues on
which the Commission has stated its opinion (see, mutatis mutandis, the
Loizidou v. Turkey (preliminary objections) judgment of 23 March 1995,
Series A no. 310, pp. 20-21, para. 54).
This is because in any event neither the Commission nor the
respondent Government have offered any argument on the question whether
there has been a violation of Article 13 (art. 13), and the Court sees
no need to consider it of its own motion.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been no violation
of Article 3 of the Convention (art. 3);
2. Dismisses unanimously the Government's preliminary objection
in respect of Article 8 of the Convention (art. 8);
3. Holds by eight votes to one that there has been no violation
of Article 8 of the Convention (art. 8);
4. Holds unanimously that it is not necessary to examine whether
there has been a violation of Article 13 of the Convention
(art. 13).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 28 November 1996.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the dissenting
opinion of Mr De Meyer is annexed to this judgment.
Initialled: R. B.
Initialled: H. P.
DISSENTING OPINION OF JUDGE DE MEYER
(Translation)
The risk of being subjected to torture or to inhuman or
degrading treatment or punishment in the country to which a person is
returned (1) is not the only circumstance in which removal of a
foreign national may give rise to an issue under Article 3 of the
Convention (art. 3).
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1. See paragraph 92 of the judgment.
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What gives rise to such an issue in the present case is the
Netherlands authorities' "haste" (2) to remove a 9-year-old girl,
without taking sufficient care in examining her rather uncertain
personal and family circumstances (3) and handing over
"all responsibility for her welfare as soon as she had left
Netherlands territory to others" (4).
_______________
2. See paragraph 103 of the judgment.
3. See paragraphs 10 to 13, 15 and 28 of the judgment.
4. See paragraph 103 of the judgment.
_______________
This was not merely an "attitude" which was "open to
criticism" (5), but was above all, in my opinion, treatment that it is
difficult to consider human.
_______________
5. Ibid.
_______________
Admittedly, no serious harm seems to have befallen the child
so summarily removed, and she was allowed to join the other applicant
one year later. So much the better. But that does not retrospectively
excuse what happened.
I also consider, for the same reasons, that there was an
infringement of both applicants' right to respect for their private and
family life.
The authorities' doubts about the nature of the ties between
Francine and Bata Nsona were serious (6). But because of the girl's
age they should have considered the applicants' case rather more
thoroughly, even though the latter, for reasons known only to
themselves, had "resorted to deceit" on arrival (7).
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6. See the paragraphs of the judgment cited in note 3.
7. See paragraphs 112 and 113 of the judgment.