CEDH · CASELAW;REPORTS;ENG — 2 mars 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 23366/94                        Francine Nsona and Bata Nsona                                   against                               the Netherlands                          REPORT OF THE COMMISSION                          (adopted on 2 March 1995)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-15). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 21-42). . . . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 43-71). . . . . . . . . . . . . . . . . . . . . . . . 8         A.    Complaints declared admissible            (para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8         B.    Points at issue            (para. 44) . . . . . . . . . . . . . . . . . . . . . . . 8         C.    Article 3 of the Convention            (paras. 45-54) . . . . . . . . . . . . . . . . . . . . . 8              CONCLUSION            (para. 55) . . . . . . . . . . . . . . . . . . . . . . .10         D.    Article 8 of the Convention            (paras. 56-60) . . . . . . . . . . . . . . . . . . . . .10              CONCLUSION            (para. 61) . . . . . . . . . . . . . . . . . . . . . . .10         E.    Article 13 of the Convention            (paras. 62-67) . . . . . . . . . . . . . . . . . . . . .11              CONCLUSION            (para. 68) . . . . . . . . . . . . . . . . . . . . . . .11         F.    Recapitulation            (para. 69-71). . . . . . . . . . . . . . . . . . . . . .12                              TABLE OF CONTENTS                                                                    Page   DISSENTING OPINION OF Mrs. G.H. THUNE AND Mr. I. BÉKÉS. . . . . . .13   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .14   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicants are two Zaïrese citizens, born in 1984 and 1960 respectively. It is alleged that the first applicant is the niece of the second applicant. The first applicant resides in Zaïre and the second applicant at Vlaardingen, the Netherlands. Before the Commission the first applicant was represented by the second applicant. The second applicant was represented by Mr. W.A. Venema, a lawyer practising in Rotterdam.   3.     The application is directed against the Netherlands.   The respondent Government were represented by their Agent, Mr. H.A.M. von Hebel of the Netherlands Ministry of Foreign Affairs.   4.     The case concerns the first applicant's expulsion to Zaïre and the conditions under which it was carried out. The applicants invoke Articles 3, 8 and 13 of the Convention.   B.     The proceedings   5.     The application was introduced on 25 January 1994 and registered on 31 January 1994.   6.     The applicants requested a ruling under Rule 36 of the Commission's Rules of Procedure but the President on 31 January 1994 found no basis for such a decision.   7.     The President further decided, pursuant to Rule 48 para. 2 (b) of the Commission's Rules of Procedure, to give notice of the application to the respondent Government and to invite the Government to submit written observations on the admissibility and merits of the application.   8.     The Government's observations were submitted on 23 March 1994. The applicants replied on 30 April 1994 after an extension of the time- limit.   9.     On 6 July 1994 the Commission declared admissible the applicants' complaints under Articles 3, 8 and 13 of the Convention. It declared inadmissible the remainder of the application.   10.    The text of the Commission's decision on admissibility was sent to the parties on 7 July 1994 and they were invited to answer certain questions put by the Commission and, if they so wished, to submit further written observations and evidence.   11.    The Government submitted answers to the questions and further observations on 26 September 1994.   12.    On 9 December 1994 the Commission granted the applicants legal aid under the Commission's legal aid scheme.   13.    After having been granted two extensions of the time-limit until 21 October 1994 and 4 November 1994 respectively and after having been refused a third extension, the second applicant's lawyer submitted answers to the questions and further observations on 17 February 1995.   14.    The applicants' submissions were submitted after the expiry of the last time-limit fixed for this purpose. On 21 February 1995 the Commission decided that these submissions should not be taken into account.   15.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   16.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM.   C.A. NØRGAARD, President            H. DANELIUS            C.L. ROZAKIS            G. JÖRUNDSSON            S. TRECHSEL            A.S. GÖZÜBÜYÜK            A. WEITZEL            J.-C. SOYER            H.G. SCHERMERS       Mrs. G.H. THUNE       Mr.   F. MARTINEZ       Mrs. J. LIDDY       MM.   L. LOUCAIDES            J.-C. GEUS            M.P. PELLONPÄÄ            B. MARXER            M.A. NOWICKI            I. CABRAL BARRETO            B. CONFORTI            I. BÉKÉS            J. MUCHA            D. SVÁBY            E. KONSTANTINOV            G. RESS   17.    The text of this Report was adopted on 2 March 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   18.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   19.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   20.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   21.    On 29 December 1993 the first applicant, Francine Nsona, then nine years old, arrived in the Netherlands at Schiphol airport in the company of the second applicant and the latter's son. Both children were mentioned in the second applicant's passport as being her children. The applicants allege that the first applicant is the niece of the second applicant.   22.    Following an investigation by the Royal Military Constabulary (Koninklijke Marechaussee), entrusted with the control of entry of persons on Dutch territory, the second applicant and her son were allowed to enter the Netherlands on 30 December 1993 since they held valid residence permits. As the first applicant did not have an entry visa or an authorisation for temporary stay (machtiging tot voorlopig verblijf), she was refused entry and taken to the airport hotel at Schiphol, where she stayed under supervision of the Royal Military Constabulary. Another Zaïrese national, Mrs. M.M., who had arrived on the same flight, was also refused entry into the Netherlands.   23.    The second applicant was informed by the Royal Military Constabulary that she would have to accompany the first applicant back to Zaïre. A seat for the first applicant had already been reserved on a flight on 3 January 1994 to Kinshasa via Zürich.   24.    On 31 December 1993 the second applicant filed an application to the head of the local police at Vlaardingen on behalf of the first applicant for a residence permit as a foster child and for compelling humanitarian reasons. She also started proceedings before the District Court (Kantongerecht) of Schiedam requesting the Court to appoint her as the temporary guardian (tijdelijk voogdes) of the first applicant. The latter proceedings are currently still pending.   25.    On the same day the second applicant returned to Schiphol airport requesting that the first applicant be allowed to accompany her to her residence, since there was nobody in Zaïre who could take care of her. She also stated she would not accompany the first applicant back to Zaïre.     26.    Also on 31 December 1993, at about 12.30 hrs., the applicants' lawyer, in summary proceedings (kort geding), requested the President of the Regional Court (Arrondissementsrechtbank) of The Hague to issue an injunction against the State as regards the first applicant's expulsion. A hearing on this request was planned for 11 January 1994. At about 13.00 hrs. this date was communicated by the applicants' lawyer to the lawyer of the Dutch State (landsadvocaat), who in turn informed the Ministry of Justice of this date.   27.    The responsible officer of the Ministry of Justice decided that the first applicant was not allowed to remain in the Netherlands pending the summary proceedings.   28.    On 31 December 1993, at about 14.30 hrs. the applicants' lawyer was informed by telephone by an officer of the Royal Military Constabulary that at that time the first applicant was boarding a plane for Zürich. The lawyer informed this officer of the date for the hearing in summary proceedings before the President of the Regional Court. The officer, however, replied he could only stop her expulsion on the basis of instructions from the Ministry of Justice. On the same day, i.e. on 31 December 1993, at about 14.45 hrs., the Swissair plane carrying the first applicant, in the company of Mrs. M.M. who was also being expelled to Zaïre, left for Zürich. They were both booked on a flight from Zürich to Kinshasa on 4 January 1994.   29.    On 3 January 1994 the applicants' lawyer requested the President of the Regional Court of The Hague to advance the date of the hearing planned for 11 January 1994 in order to prevent the first applicant from being sent from Zürich to Kinshasa on 4 January 1994.   The hearing took place the same day at 14.30 hrs. The applicants' lawyer changed the initial request into a request to order the Netherlands State to allow the first applicant to return to the Netherlands and subsequently to allow her to remain in the Netherlands pending the proceedings on her request for a residence permit.   30.     On 4 January 1994, following a request by the applicants' lawyer not to send the first applicant to Zaïre, the Swiss authorities decided to postpone her departure from Zürich. On 5 January 1994 the applicants' lawyer was informed by the Swiss border police that her departure was planned 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.    Also on 4 January 1994 the President of the Regional Court of The Hague declared the applicants' requests for an injunction inadmissible on the ground that the first applicant was still a minor who could only be represented by a guardian, whereas the second applicant did not have custody over her and thus could not act on her behalf.   32.    The President, however, also had regard to the substance of the case. Noting that no death certificate of the first applicant's mother had been submitted, he found that a document of 24 September 1992, submitted by the applicants and allegedly containing the last will of the first applicant's mother in respect of the care of the first applicant, did not contain any concrete indication that the second applicant had in fact been entrusted with the custody over the first applicant. Furthermore the President, noting that the second applicant could have requested the District Court earlier than 31 December 1993 to be appointed temporary guardian, found no exceptional circumstances on the basis of which the applicants' requests should be declared admissible. Insofar as the applicants had invoked Article 3 of the Convention, the President found 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. As regards the complaint under Article 3 of the Convention in respect of the manner of the first applicant's expulsion, the President did not find it established that she travelled unaccompanied. Finally, noting that the first applicant apparently had been able to support herself either in Congo or in Zaïre after the death of her mother until her departure for the Netherlands and finding it not 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.   33.    On 18 January 1994 the applicants filed an appeal against this decision with the Court of Appeal (Gerechtshof) of The Hague, which proceedings are currently still pending.   34.    On 6 January 1994, the first applicant, who until that moment had stayed in a Swissair nursery, left Zürich unaccompanied on a Swissair flight to Kinshasa, where she arrived on 7 January 1994.   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 Dutch authorities had been informed that the first applicant would be met there by a Mr. Monga, the Director External Relations of the Banque du Zaïre and a business relation of Swissair, who had been contacted by Swissair, but whom the applicants allegedly did not know.   35.    On 7 January 1994 the head of the local police at Vlaardingen rejected the second applicant's request on behalf of the first applicant for a residence permit on formal grounds, inter alia, in that the request had not been signed by the first applicant herself or by her legal representative, the question of custody over the first applicant still pending before the District Court. The second applicant's appeal of 13 January 1994 to the Deputy Minister of Justice is currently still pending.   36.    In a telefax of 11 January 1994, which was transmitted on 12 January 1994 by the Netherlands Red Cross Society to the applicants' lawyer, the International Committee of the Red Cross stated that the Embassy had informed the International Committee on 10 January 1994 that they were following the case and that a report had been sent to the Ministry of Justice.   37.    On 13 January 1994 the applicants' lawyer requested the Netherlands Embassy in Kinshasa to be informed whether or not the first applicant had in fact been met by Mr. Monga, as stated by the Red Cross Committee, and where and under which circumstances she was living. The Embassy replied that he should address himself to the Information Department of the Ministry of Justice.   38.    By letter of 31 January 1994 the Minister of Foreign Affairs informed the Minister of Justice that on 28 January 1994 a meeting with the first applicant, who was accompanied by Mr. A. Mbemba and Mrs. C. Bakangadio with whom she had lived before she went to the Netherlands, had taken place at the Netherlands Embassy at Kinshasa. The Minister of 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 the first applicant'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 the first applicant's family or acquaintances, he had entrusted her to the Zaïrese immigration authorities. In the afternoon of 7 January 1994 the Director of the Immigration Department requested a member of his staff to take the first applicant to the address 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, the first applicant had been taken to the address of Mr. Mbemba and Mrs. Bakangadio, where she now lived. The Minister added that the first applicant also sometimes stayed with her grandmother.   39.    On 3 March 1994 the applicants and the association "Francine Back" (Stichting Francine terug) requested the President of the Regional Court of The Hague under Section 8:21 para. 3 of the General Administrative Law Act (Algemene Wet Bestuursrecht) to take certain interim measures, i.e., inter alia, to grant the first applicant immediate provisional access to the Netherlands.   On 25 March 1994 the Acting President of the Regional Court found the applicants' request admissible and the association's request inadmissible, but rejected the applicants' request for interim measures as ill-founded. The Acting President held that the first applicant or her legal representative should apply for an authorisation for temporary stay, whereas he did not find it established that she could not be expected to await the decision on this application in Zaïre.   40.    On 31 March 1994 the second applicant requested the Dutch authorities to grant the first applicant an authorisation for temporary stay. This request was rejected on 29 September 1994 by the Minister of Foreign Affairs.   41.    On 30 August 1994 a second meeting between a representative of the Netherlands Embassy in Zaïre, the first applicant, Mr. A. Mbemba and Mrs. C. Bakangadio took place at the home of Mr. Mbemba and Mrs. Bakangadio with whom the first applicant had lived before she had left for the Netherlands with the second applicant, and with whom she still resided.   42.    According to the Government, an investigation into the first applicant's family is currently being conducted. So far no family link has been established between the applicants, nor with any other living person. Mrs. Bakangadio is a sister of a business friend of the first applicant's father, who appears to have entrusted the care of the first applicant to this business friend in case of his and his wife's death. This friend in turn entrusted her care to Mrs. Bakangadio and her family who accepted this responsibility. Mr. Mbemba and Mrs. Bakangadio do not know any living relatives of the first applicant, they did not know the second applicant, and are not acquainted with the document of 24 September 1992 allegedly containing the last will of the first applicant's mother.   III.   OPINION OF THE COMMISSION     A.     Complaints declared admissible   43.    The Commission has declared admissible the first applicant's complaint that her expulsion, and the conditions under which the expulsion order was carried out, constituted inhuman treatment contrary to Article 3 (Art. 3) of the Convention. The Commission has also declared admissible the applicants' complaints that the first applicant's expulsion violated their right to respect for family life as guaranteed by Article 8 (Art. 8) of the Convention and that they had no effective remedy before a national authority available to them within the meaning of Article 13 (Art. 13) of the Convention.   B.     Points at issue   44.    The following are the points at issue in the present application:   -      whether there has been a violation of Article 3 (Art. 3) of the Convention, as regards the first applicant;   -      whether there has been a violation of Article 8 (Art. 8) of the Convention, as regards both applicants;   -      whether there has been a violation of Article 13 (Art. 13) of the Convention, as regards both applicants.   C.     Article 3 (Art. 3) of the Convention   45.    Article 3 (Art. 3) of the Convention provides as follows:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."   46.    The applicants complain that the first applicant's unaccompanied return to Zaïre, the Dutch authorities' failure to make adequate arrangements for her to be met upon her arrival there and the failure to guarantee her care and welfare in Zaïre amount to treatment contrary to Article 3 (Art. 3) of the Convention.   47.    The Government contend that the decision to refuse the first applicant entry to the Netherlands did not violate her rights under Article 3 (Art. 3) of the Convention, neither because of the general situation in Zaïre nor in view of the way she was returned to her country of origin.   48.    The Government submit that it has not been argued either in the domestic proceedings or in the proceedings before the Commission that the first applicant would risk treatment contrary to Article 3 (Art. 3) of the Convention when returned to Zaïre. She is in the same position as any Zaïrese national who has not been involved in any activities against the Zaïrese Government. Moreover on the basis of her personal circumstances no indications can be found that she would face a real risk of ill-treatment there.   49.    As to the way in which she returned to Zaïre the Government submit that the first applicant was accompanied until Zürich, where the continuation of her return was delayed as a consequence of an intervention by her lawyer. Furthermore, although upon her arrival in Zaïre she was not met by an employee of the Netherlands Embassy, she was not left unattended and was brought the next day to Mr. Mbemba and Mrs. Bakangadio with whom she had already stayed before she left for the Netherlands.   50.    The Commission recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including those based on Article 3 (Art. 3) of the Convention, to control the entry, residence and expulsion of aliens. The expulsion of an alien by a Contracting State may give rise to an issue under Article 3 (Art. 3) of the Convention, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown that the person concerned faced a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention in the country to which this person was returned (cf. Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, paras. 102-103).   51.    The Commission further recalls that a treatment has to reach a certain level of severity before it can be considered to be contrary to Article 3 (Art. 3) of the Convention. The assessment of this level depends on all circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the age of the victim (cf. Eur. Court H.R., Cruz Varas and Others judgment of 20 March 1991, Series A no. 201, p. 31, para. 83).   52.    The Commission accepts that the first applicant's return to Zaïre may have involved a certain hardship, but it does not find it established that her expulsion to Zaïre exposed her to the risk of treatment there which could be considered as being contrary to Article 3 (Art. 3) of the Convention.   53.    As regards the manner in which the first applicant's expulsion has been carried out, the Commission notes that, at the time of her expulsion, the first applicant was nine years old and, allegedly, without any relatives or other persons in Zaïre who could provide her with the required care. The Commission further notes that she was expelled from the Netherlands after two days and, after having spent a number of days in a Swissair nursery in Zürich, arrived in Kinshasa on 7 January 1994. The Commission finds it established that the Netherlands authorities, prior to the first applicant's expulsion, had failed to investigate her personal situation in Zaïre and had failed to take adequate measures in respect of her arrival there.   54.    The Commission considers that, in these circumstances, the first applicant's expulsion must have involved a certain hardship and cannot be considered as having been carried out with due concern to the relevant factors, but it did not reach the level of severity necessary for Article 3 (Art. 3) to be applicable.         CONCLUSION   55.    The Commission concludes, by 20 votes to 4, that there has been no violation of Article 3 (Art. 3) of the Convention, as regards the first applicant.   D.     Article 8 (Art. 8) of the Convention     56.    Article 8 para. 1 (Art. 8-1) of the Convention provides:         "Everyone has the right to respect for his private and       family life, his home and his correspondence."   57.    The applicants submit that the first applicant has no family life with anyone in her country of origin and, as a consequence of her expulsion, was barred from developing a family life with her aunt who is the only remaining member of her family.   They argue that an interference with a new family life may also be contrary to Article 8 (Art. 8) of the Convention, and that the restrictive Dutch immigration policy is an insufficient basis for the conclusion that the first applicant's expulsion was a compelling social necessity.   58.    The Government submit that there has been no interference with the applicants' family life, since there has never been any family life between them. Both before and after her stay in the Netherlands, the first applicant has been taken into the family of Mr. Mbemba and Mrs. Bakangadio, who provide for her care. They have stated to the Dutch authorities that they do not know whether or not the first applicant has any living relatives, that they did not know the second applicant and they were unaware of the document alleged to be the first applicant's mother's last will as regards the care of the first applicant. They have further stated that they have accepted the request of Mrs. Bakangadio's brother to provide for the first applicant, whose care had initially been entrusted to him by the first applicant's father.   59.    The Commission notes that, when the first applicant entered the Netherlands with the second applicant, she was incorrectly mentioned in the second applicant's passport as being her daughter. The Commission further notes that the applicants' alleged family relationship has remained unsubstantiated.   60.    In these circumstances the Commission is of the opinion that the first applicant's expulsion to Zaïre cannot be regarded as constituting an interference with the applicants' right to respect for their family life within the meaning of Article 8 (Art. 8) of the Convention.         CONCLUSION   61.    The Commission concludes, by 22 votes to 2, that there has been no violation of Article 8 (Art. 8) of the Convention.   E.     As regards Article 13 (Art. 13) of the Convention   62.    Article 13 (Art. 13) of the Convention provides as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy       before a national authority notwithstanding that the       violation has been committed by persons acting in an       official capacity."   63.    The applicants submit that the President of the Regional Court only marginally examined the merits of the applicants' request to order the first applicant's return to the Netherlands before he rejected it as inadmissible on the ground that the first applicant was a minor and that her aunt had not been entrusted with the custody over her. They further submit that, as the Netherlands authorities, contrary to their normal practice, did not allow the first applicant to await the outcome of the summary proceedings in the Netherlands, she was deprived of an effective remedy.   64.    The Government, referring to the Leander case (Eur. Court H.R., judgment of 26 March 1987, Series A no. 116), submit that the applicants had an effective remedy within the meaning of Article 13 (Art. 13) of the Convention, in that they could apply for an authorisation for temporary stay. Moreover, the applicants had available an effective remedy before the President of the Regional Court of The Hague, who, on 4 January 1994, did not reject the applicants' request for lack of competence but rejected it after having examined all aspects of the case. The fact that the request was unsuccessful does not affect the effectiveness of these proceedings.   65.    As regards the fact that the first applicant was not allowed to stay in the Netherlands pending the summary proceedings before the President of the Regional Court of The Hague, the Government submit that, according to Dutch policy in respect of aliens, only persons, who have already entered the Netherlands, are allowed to await the outcome of such summary proceedings in the Netherlands. This rule does not apply to persons who have been refused entry.   66.    The Commission notes that the applicants had access to the President of the Regional Court of The Hague. It is true that the President declared the applicants' request for an injunction inadmissible because the second applicant did not have custody over the first applicant and thus could not act on the latter's behalf. However, the President also had regard to the substance of the case (see para. 32 above).   67.    In these circumstances the Commission is of the opinion that the applicants had an effective remedy available to them within the meaning of Article 13 (Art. 13) of the Convention.         CONCLUSION   68.    The Commission concludes, unanimously, that there has been no violation of Article 13 (Art. 13) of the Convention.   F.     Recapitulation   69.    The Commission concludes, by 20 votes to 4, that there has been no violation of Article 3 (Art. 3) of the Convention, as regards the first applicant (para. 55).   70.    The Commission concludes, by 22 votes to 2, that there has been no violation of Article 8 (Art. 8) of the Convention (para. 61).   71.    The Commission concludes, unanimously, that there has been no violation of Article 13 (Art. 13) of the Convention (para. 68).   Secretary to the Commission           President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)                                                             (Or. English)           DISSENTING OPINION OF Mrs. G.H. THUNE AND Mr. I. BÉKÉS         Unfortunately we are unable to agree with the majority as regards Article 8 of the Convention as we consider that there has been lack of respect for the private and family life of the first applicant.         We do recognise the right of each state to regulate and limit immigration as well as the difficulties national authorities can be faced with when children arrive at the border, unaccompanied or accompanied by adults without parental responsibility.         However, it also follows from Commission's and Court's case-law that even if the person concerned would not face any serious risk of torture or ill-treatment upon arrival in the country to which he or she is being expelled, the expulsion may entail serious problems which may raise an issue under the Convention and thereby create an obstacle to the expulsion as such or require particular protective measures.         For example we would mention persons with serious health problems as well as persons dependant on help from other people due to their young age or particular physical or psychological needs.         We recall that the present case concerns a young girl, 9 years' old, whose parents had died. She was left with strangers upon arrival in the Netherlands and refused a temporary residence permit pending the outcome of the summary proceedings in which the merits of her case were to be considered.         As established by the majority of the Commission, the Dutch authorities had failed to investigate Francine's personal situation in Zaïre as well as to take adequate measures in respect of her arrival there (para. 53 of the Commission's report).         Having regard to these particular circumstances, we find that the Dutch authorities have not shown sufficient respect for the private and family life of the applicant and thus acted contrary to Article 8 of the Convention.                                 APPENDIX I                         HISTORY OF THE PROCEEDINGS   Date                         Item _________________________________________________________________   25.01.94                     Introduction of application   31.01.94                     Registration of application   Examination of admissibility   31.01.94                     President's decision to communicate the                             case to the respondent Government and to                             invite the parties to submit observations                             on admissibility and merits     23.03.94                     Government's observations   30.04.94                     Applicant's observations in reply   06.07.94                     Commission's decision to declare                             application in part admissible and in part                             inadmissible   Examination of the merits   07.07.94                     Decision on admissibility transmitted to                             parties. Invitation to parties to answer                             questions put by Commission and to submit                             further observations on the merits   26.09.94                     Government's answers to questions put by                             Commission and further observations   03.12.94                     Commission's consideration of state of                             proceedings   09.12.94                     Commission's grant of legal aid   21.02.95                     Commission's deliberations on the merits,                             final vote and consideration of text of                             the Report   02.03.95                     Adoption of Report