CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 octobre 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FF { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:18pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .sE90CBE2F { font-family:Arial; font-weight:bold; font-style:italic; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sFC1B4D41 { margin-top:36pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s76CF415B { page-break-before:always; clear:both } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s63E120F7 { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s79CB0F4D { width:230.8pt; text-indent:0pt; display:inline-block } .sAEA713E { width:226.14pt; text-indent:0pt; display:inline-block } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s5CD64447 { width:5.65pt; text-indent:0pt; display:inline-block } .s95281B8 { width:39.74pt; text-indent:0pt; display:inline-block } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .s15676BC1 { width:212.11pt; text-indent:0pt; display:inline-block } .s16935426 { margin-top:36pt; margin-bottom:30pt; text-align:justify; font-size:14pt } .sF11CDCAF { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s69A0AAD0 { margin-top:18pt; margin-left:17.85pt; margin-bottom:24pt; text-indent:-17.85pt; text-align:justify } .s168049A { margin-top:24pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify } .s5A00354 { margin-top:18pt; margin-left:48.75pt; margin-bottom:18pt; text-indent:-17pt; text-align:justify; font-size:10pt } .s71BC72F4 { margin-top:18pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F31FE3 { margin-top:24pt; margin-left:17.85pt; margin-bottom:24pt; text-indent:-17.85pt; text-align:justify } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s33CF098A { margin-top:42pt; margin-bottom:30pt; text-align:justify; font-size:14pt } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7E121DAC { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .sCBC6AB24 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s132B84CB { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify } .s48125EFE { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; font-size:10pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sD5D4358A { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify } .sEBA8B701 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify } .sAC7466F { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sAA8DEB86 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sD107E55B { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s8A7788FC { width:42.94pt; display:inline-block } .sD2F08BAA { width:176.3pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }     FIRST SECTION         CASE OF MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM   (Application no. 13178/03)                   JUDGMENT       STRASBOURG   12 October 2006   FINAL   12/01/2007     In the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President ,   Loukis Loucaides,   Anatoly Kovler,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges ,   Paul Martens, ad hoc judge , and Søren N ielsen, Section Registrar , Having deliberated in private on 21 September 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 13178/03) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Congolese nationals, Ms Pulcherie Mubilanzila Mayeka and Miss Tabitha Kaniki Mitunga (“the applicants”), on 16 April 2003. 2.     The applicants were represented by Mr D. Vanheule, a member of the Ghent Bar. The Belgian Government (“the Government”) were represented by their Agent, Mr C. Debrulle, Director of the Federal Office of Justice. 3.     The applicants alleged, in particular, that the second applicant’s detention and deportation had violated Articles 3, 8 and 13 of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Françoise Tulkens, the judge elected in respect of Belgium, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Paul Martens to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     The applicants and the Government each filed further observations (Rule 59 § 1). The parties replied in writing to each other’s observations. 6.     A hearing on admissibility and the merits took place in public in the Human Rights Building, Strasbourg, on 26 January 2006 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   C. Debrulle ,   Agent , Mr   P. Gérard ,   Counsel , Ms   C. Gallant , Attaché, Human Rights Office,     Legislation and Fundamental Rights and     Freedoms Department, Federal Government     Department of Justice, Ms   L. Peeters , Director, Aliens Office Inspectorate,     Federal Government Department of the Interior, Ms   R. Goethals , Director, National Airport Transit Centre, Ms   N. Bracke , Attaché, Departmental Head,     Border Inspection Department, Aliens Office,   Advisers ; (b)     for the applicants Mr   D. Vanheule ,   Counsel .   The Court heard addresses by them. 7.     By a decision of 26 January 2006, the Court declared the application admissible. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal (Canada). 9.     The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003. 10.     After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her. 11.     At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter. He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father’s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant’s attempts to bring her to Canada lawfully had failed. 12.     On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter. 13.     On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980. On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/5 of that Act. Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands. On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status. 14.     On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant’s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her. In the interim, the first applicant lodged an application in Canada for a visa for her daughter. 15.     On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada. 16.     On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant’s request for asylum under the Dublin Convention, but they refused. It also asked K. to furnish the addresses of the members of the family in Kinshasa. 17.     In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs. 18.     On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant’s former address in Kinshasa and her parents’ address there. 19.     On 27 August 2002 the second applicant’s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d’Etat for an order setting aside the removal directions. The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons. 20.     On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant’s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses. 21.     In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada. 22.     On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant’s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior’s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989. 23.     On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms   M., an 18-year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know. The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal. No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M.’s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle. 24.     In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees (UNHCR), the Red Cross and the Belgian embassy in Kinshasa. With the embassy’s help it was able, on the basis of K.’s statements, to identify and subsequently locate a member of the second applicant’s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B.’s home and explained the situation to him, but B. told him that he did not have the means to look after the child. 25.     On 9 October 2002 the second applicant’s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74/5, paragraph 1, of the Law of 15   December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant’s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children. In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child. 26.     On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74/4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed. 27.     On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant’s application and requested the case file, which the Aliens Office supplied on 14 October 2002. 28.     According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October. 29.     In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant’s release: “... the enquiries have enabled the person concerned’s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant’s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family’s address. Accordingly, in the child’s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa.” On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery: “Dear Sir, I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N’Djili) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002. Yours faithfully, ...” 30.     On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant’s detention was incompatible with Article 3 §§ 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day. Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal. On the same day the UNHCR’s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office’s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant’s father had disappeared in August 2000 and that her twin sister had been taken to Congo-Brazzaville four months earlier. 31.     On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported. There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B.’s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute. 32.     The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office’s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation. On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter’s deportation to Kinshasa. 33.     On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B.’s home, only to discover that he had disappeared. On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her. 34.     The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities. The case had attracted considerable attention from the press in the meantime. 35.     On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa. 36.     On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification. 37.     At the request of the Aliens Office, the director of Transit Centre no.   127 described the second applicant’s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no.   127 were concerned about the welfare of children, particularly unaccompanied minors. II.     RELEVANT DOMESTIC LAW AND PRACTICE 38.     Aliens (Entry, Residence, Settlement and Expulsion) Act of 15   December 1980 (a)     Appeals against decisions on the entry, residence, settlement and expulsion of aliens Section 63 “Administrative decisions may give rise to an appeal under the expedited procedure, an application to reopen the proceedings, a request for security measures to be lifted, an application to an administrative court to have the decision set aside or an appeal to an ordinary court in accordance with the following provisions. No summary application for an interim order under Article 584 of the Judicature Code will lie against an administrative decision taken pursuant to sections 3, 7, 11, 19, Part II, Chapter II, and Part III, Chapter I bis . ...” (b)     Measures entailing deprivation of liberty Section 71 “Aliens against whom a measure depriving them of their liberty has been taken pursuant to sections 7, 25, 27, 29, second paragraph, 51/5(3), fourth paragraph, 52 bis , fourth paragraph, 54, 63/5, third paragraph, 67 and 74/6 may appeal against that measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they reside in the Kingdom or the area in which they have been found. Aliens held in a designated place at the border pursuant to section 74/5 may appeal against the measure by lodging a notice of appeal with the chambre du conseil of the criminal court with jurisdiction for the area in which they are being held. They may renew the appeal referred to in the preceding paragraphs at monthly intervals.” Section 72 “The chambre du conseil shall deliver its decision within five working days after the date the appeal is lodged after hearing the submissions of the alien or of his or her counsel and the opinion of Crown Counsel. If the case has been referred to it by the Minister in accordance with section 74, the chambre du conseil must hear submissions from the Minister, his or her delegate or his or her counsel. If it fails to deliver its decision within the time allowed, the alien shall be released. The chambre du conseil shall review the legality of the detention and of the removal directions but shall have no power to review their reasonableness. An appeal shall lie against orders of the chambre du conseil by the alien, Crown Counsel and, in the circumstances set out in section 74, the Minister or his or her delegate. The procedure shall be the same as that applicable under the statutory provisions on pre-trial detention, with the exception of the provisions relating to arrest warrants, investigating judges, prohibitions on communications, release on licence or on bail, and the right to inspect the administrative file. Counsel for the alien may consult the case file at the registry of the relevant court during the two working days preceding the hearing. The registrar shall notify counsel of the decision by registered letter.” Section 73 “If the chambre du conseil decides that the alien is not to remain in custody, he or she shall be released as soon as the decision becomes final. The Minister may order the alien to reside in a designated place either until the removal directions have been carried out or until his or her appeal has been decided.” Section 74 “If the Minister decides to prolong the alien’s detention or to keep him or her under arrest pursuant to section 7, paragraph 5, section 25, paragraph 5, section 29, paragraph 3, section 74/5(3), or section 74/6(2), he or she must apply within five working days of that decision to the chambre du conseil with jurisdiction for the area in which the alien is resident in the Kingdom or was found to enable it to determine whether the decision is lawful. If no application is made to the chambre du conseil within that period, the alien shall be released. The remainder of the procedure shall be as stated in sections 72 and 73.” Section 74/4 “§ 1.     Any public or private carrier bringing passengers into the Kingdom who are not in possession of the documents required by section 2 or who come within any of the other categories referred to in section 3 shall transport or arrange for the transport of such passengers without delay to the country from which they have come or to any other country prepared to accept them. § 2.     Any public or private carrier which has brought passengers into the Kingdom will also be required to remove them if: (a)     the carrier that was due to take them to their country of destination refuses to allow them to embark; or (b)     the authorities in the State of destination refuse them leave to enter and send them back to the Kingdom and access to the Kingdom is refused because they do not possess the documents required by section 2 or they fall within any of the other categories referred to in section 3. § 3.     If the passengers do not possess the documents required by section 2 and their immediate removal is not possible, the public or private carrier shall be jointly liable with the passengers for the costs of the passengers’ accommodation and stay and any medical expenses they incur. ...” Section 74/5 “§ 1.     The following persons may be held in a designated place at the border pending the grant or refusal of leave to enter the Kingdom or their removal from the territory: 1 o     aliens who, pursuant to the provisions of this Act, are liable to be refused entry by the immigration authorities; 2 o     aliens who attempt to enter the Kingdom without satisfying the conditions set out in section 2, who claim to be refugees and request refugee status at the border. § 2.     The Crown may designate other places within the Kingdom which will be assimilated to the places referred to in § 1. Aliens held in such other places shall not be deemed to have been given leave to enter the Kingdom. § 3.     Detention in a designated place at the border may not exceed two months. The Minister or his or her delegate may however prolong the detention of an alien referred to in § 1 for two-month periods provided: 1 o     the alien is the subject of enforceable removal directions, an enforceable decision to refuse entry or an enforceable decision upholding the refusal of entry; and 2 o     the steps necessary to remove the alien are taken within seven working days of the decision or measure referred to in 1 o and are prosecuted with all due diligence and the alien’s physical removal within a reasonable period remains possible. After one extension has been granted, the decision referred to in the preceding paragraph may only be taken by the Minister. The total length of detention shall under no circumstances exceed five months. If the preservation of law and order or national security so demands, aliens may be held for further successive one-month periods after the time-limit referred to in the preceding paragraph has expired, provided that the total length of their detention shall not on that account exceed eight months. § 4.     The following may enter the Kingdom: 1 o     aliens referred to in § 1 against whom no decision or enforceable measure referred to in § 3, paragraph 1, 1 o has been taken; 2 o     aliens referred to in § 1 against whom an enforceable decision or measure referred to in § 3, paragraph 1, 1 o has been taken but in respect of whom the Minister or his or her delegate has not extended the period at the end of the two-month period or of any extension thereof; 3 o     aliens referred to in § 1 who have been held for a total period of five or eight months respectively. ...” III.     RELEVANT INTERNATIONAL LAW AND PRACTICE 39.     Convention on the Rights of the Child of 20 November 1989, ratified by Belgium by a law of 25 November 1991 Article 3 “1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3.     States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” Article 10 “1.     In accordance with the obligation of States Parties under Article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family. ...” Article 22 “1.     States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, cooperation in any efforts by the United Nations and other competent intergovernmental organisations or non-governmental organisations cooperating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.” Article 37 “States Parties shall ensure that: ... (b)     No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c)     Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; ...” 40.     In its “Concluding observations of the Committee on the Rights of the Child: Belgium” of 13 June 2002, the Committee on the Rights of the Child made the following recommendation to Belgium: “28.     ... (a)     Expedite efforts to establish special reception centres for unaccompanied minors, with special attention to those who are victims of trafficking and/or sexual exploitation; (b)     Ensure that the stay in those centres is for the shortest time possible and that access to education and health is guaranteed during and after the stay in the reception centres; (c)     Approve as soon as possible the draft law on the creation of a guardianship service, in order to ensure the appointment of a guardian for an unaccompanied minor from the beginning of the asylum process and thereafter as long as necessary, and make sure that this service is fully independent, allowing it to take any action it considers to be in the best interests of this minor; (d)     Ensure unaccompanied minors are informed of their rights and have access to legal representation in the asylum process; (e)     Improve cooperation and exchange of information among all the actors involved, including the Aliens Office and other relevant authorities, police services, tribunals, reception centres and NGOs; (f)     Ensure that, if family reunification is carried out, it is done in the best interests of the child; (g)     Expand and improve follow-up of returned unaccompanied minors.” THE LAW I.     ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 41.     The applicants complained that the second applicant had been detained and deported in violation of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     Detention of the second applicant 1.     The applicants’ submissions 42.     The applicants submitted that the detention of the second applicant, who was then five years old, for nearly two months in a closed centre for adults constituted inhuman or degrading treatment prohibited by Article 3 of the Convention. They explained that Transit Centre no. 127 was a closed centre near Brussels Airport used to detain illegal immigrants pending their removal from the country. As had been noted in the Committee on the Rights of the Child’s second report on Belgium dated 7 July 2002, no facilities for children of the second applicant’s age existed in 2002. Accordingly, no arrangements were in place to attend to the second applicant’s needs and the only assistance she received was from another Congolese minor. Despite all the assistance given by individual members of staff, the fact remained that there had been a violation of Article 3 of the Convention as, at a crucial stage in her development, the second applicant had been denied freedom of movement, had been unable to play or express her feelings, and had been held in precarious conditions in an adult world where liberty was restricted. The Government had had other, more appropriate, options at their disposal. They could, for instance, have placed the second applicant with the Aid to Young People Department. The applicants noted, lastly, that the second applicant had suffered from sleeping disorders after her release from detention. 2.     The Government’s submissions 43.     The Government argued that, in order to determine whether the second applicant’s detention for two months in a closed centre – Transit Centre no. 127 – was capable of constituting inhuman or degrading treatment, the facts of the case had to be taken into account. In their submission, it had not been possible for the child to be given permission to enter Belgian territory without any identity papers or a visa. Nor could she have been allowed to leave with her uncle, as he had not provided any evidence to show that he was her guardian or established that he was a relative. At that juncture the Canadian authorities had not offered to issue a laissez-passer, and indeed none had been requested by the applicants. Had the first applicant travelled to Belgium, her daughter’s detention and subsequent removal would, no doubt, have been avoided. 44.     The chances of finding accommodation in a more suitable centre were virtually non-existent and, above all, would not have guaranteed the child’s supervision or, therefore, her protection. There had accordingly been a risk that she would disappear. Furthermore, although the place of detention was not adapted to the needs of a five-year-old child, particularly for what turned out to be quite a lengthy period, the explanation for this lay in the exceptional circumstances of the case and in the fact that, since situations of this type were relatively rare at the time, adequate procedures and structures had yet to be established. Legislation had since been introduced in the form of the financial planning Act ( loi-programme ) of 24 December 2002, which provided for the appointment of a guardian and for the minor to be taken into care. In addition, on 19 May 2006, the Cabinet had approved in principle a measure intended to prohibit the detention in a closed centre of unaccompanied foreign minors arrested at the border. 45.     The first applicant had been informed of her daughter’s situation straightaway and had been allowed to speak with her on the telephone for as long as she wished. The staff at the centre had gone to considerable lengths to look after the second applicant, as Mr Ma. had noted in his letter of 23   August 2002. Moreover, in his report of 23 November 2004, the director of Transit Centre no. 127 had noted that the medical and administrative staff at the centre had been attentive to her needs, that she had had daily telephone contact with her mother and uncle and had been integrated into the family life of children of her own age by the children’s mothers. In the light of all this, it was not so much the second applicant’s detention in the instant case that was in issue but the very principle of the detention of minors and the fact that the Belgian authorities had rejected the proposed alternative accommodation. 46.     As to the length of the detention, the explanation for this lay in the lengths to which the authorities had gone to clarify the second applicant’s situation, a particular example of this being the care with which the Commissioner-General for Refugees and Stateless Persons had examined her expedited appeal. Various requests for information had been made by the Aliens Office to various persons and bodies, including international organisations and private individuals in Canada and the Democratic Republic of Congo, in order to find the most appropriate solution. Another contributory factor had been the unceasing efforts the Belgian authorities had made to find a suitable home for the second applicant in her country of origin following the dismissal of her application for asylum. 47.     The Government further alleged that areas of uncertainty remained in the case. For example, why was it that no application for a visa was made at the time to enable the second applicant to continue her journey to Canada and what had become of the second applicant’s father. There were also question marks over the first applicant’s conduct: she had not mentioned the existence of her two children in her application for asylum in Canada or sought a visa to enable her to travel to Belgium as a matter of urgency, firstly to be with her daughter and then to take her back to Canada. The Government considered that both the first applicant and the family had failed to cooperate with the competent authorities and had brought the situation of which they now complained upon themselves by treating certain matters as a “fait accompli”. They argued that the first applicant could not therefore hold the Belgian State accountable for the two months during which it had looked after the second applicant as well as it was able. 3.     The Court’s assessment 48.     Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom , 7 July 1989, § 88, Series A no.   161). In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Raninen v. Finland , 16 December 1997, § 55, Reports of Judgments and Decisions , 1997 ‑ VIII). In order to carry out this assessment, regard must be had to “the fact that the Convention is a ‘living instrument which must be interpreted in the light of present-day conditions’ [and] that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies” (see, mutatis mutandis , Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). 49.     The Court will first examine the Article 3 complaint of the second applicant – she being the person who was detained – before proceeding to consider the complaint of her mother (the first applicant), who also claims that she was a victim of the measure. (a)     The second applicant 50.     The Court notes that the second applicant, who was only five years old, was held in the same conditions as adults. She was detained in a centre that had initially been designed for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures were taken to ensure that she received proper counselling and educational assistance from qualified personnel specially mandated for that purpose. That situation lasted for two months. It is further noted that the respondent State have acknowledged that the place of detention was not adapted to her needs and that there were no adequate structures in place at the time. 51.     A five-year-old child is quite clearly dependent on adults and has no ability to look after itself so that, when separated from its parents and left to its own devices, it will be totally disoriented. 52.     The fact that the second applicant received legal assistance, had daily telephone contact with her mother or uncle and that staff and residents at the centre did their best for her cannot be regarded as sufficient to meet all her needs as a five-year-old child. The Court further considers that the uncoordinated attention she received was far from adequate. 53.     It reiterates that the obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see, mutatis mutandis , Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and A. v. the United Kingdom , 23   September 1998, § 22, Reports 1998-VI). Steps should be taken to enable effective protection to be provided, particularly to children and other vulne