Mubilanzila Mayeka and Kaniki Mitunga v. Belgium

ECtHR (Belgium)

Title:
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium 

Court/Judicial Body:
European Court of Human Rights 

Citation:
Application no. 13178/03

Date:
12 October 2006 

Instrument Cited:
European Convention on the Protection of Human Rights and Fundamental Freedoms

Summary:
In relation both to Tabitha Kaniki Mitunga and her mother, Pulchérie Mubilanzila Mayeka, the Court held, unanimously, that there had been:

• a violation of Article 3 (prohibition of inhuman treatment) of the European Convention on Human Rights on account of Tabitha’s detention;
• a violation of Article 3 on account of Tabitha’s deportation to her country of origin;
• a violation of Article 8 (right to respect of private and family life) on account of Tabitha’s detention; and,
• a violation of Article 8 on account of Tabitha’s deportation.

The Court also held, unanimously, that there had been a violation of Article 5 § 4 (right to liberty and security) in relation to Tabitha.

Under Article 41 (just satisfaction), the Court awarded the applicants 35,000 euros (EUR) for non-pecuniary damage and EUR 14,036 for costs and expenses.

1. Principal facts

The applicants, Ms Pulchérie Mubilanzila Mayeka and her daughter Tabitha Kaniki Mitunga, are Congolese nationals who were born in 1970 and 1997 respectively. They now live in Montreal (Canada). The application relates to Tabitha’s detention for a period of nearly two months and her subsequent removal to her country of origin.

Ms Mubilanzila Mayeka arrived in Canada in September 2000, where she was granted refugee status in July 2001 and obtained indefinite leave to remain in March 2003. After being granted asylum, she asked her brother, a Dutch national living in the Netherlands, to collect Tabitha, who was then five years old, from the Democratic Republic of the Congo and to look after her until she was able to join her in Canada.

On 18 August 2002 shortly after arriving at Brussels airport, Tabitha was detained in Transit Centre no. 127 because she did not have the necessary documents to enter Belgium. The uncle who had accompanied her to Belgium returned to the Netherlands. On the same day a lawyer was appointed by the Belgian authorities to assist Tabitha.

On 27 August 2002 an application for asylum that had been lodged on behalf of Tabitha was declared inadmissible by the Belgian Aliens Office. Its decision was upheld by the Commissioner-General for Refugees and Stateless Persons on 25 September 2002.

On 26 September 2002 Tabitha’s lawyer asked the Aliens Office to place Tabitha in the care of foster parents, but did not receive a reply.

On 16 October 2002 the chambre de conseil of the Brussels Court of First Instance held that Tabitha’s detention was incompatible with the New York Convention on the Rights of the Child and ordered her immediate release. On the same day the Office of the High Commissioner for Refugees sought permission from the Aliens Office for Tabitha to remain in Belgium while her application for a Canadian visa was being processed and explained that her mother had obtained refugee status in Canada.

The following day, 17 October 2002, Tabitha was removed to the Democratic Republic of Congo. 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 that task by the chief executive of the airline. She travelled with three Congolese adults who were also being deported. No members of her family were waiting for her when she arrived in the Democratic Republic of Congo. On the same day, Ms Mubilanzila Mayeka rang Transit Centre no. 127 and asked to speak to her daughter, but was informed that she had been deported.

At the end of October 2002 Tabitha joined her mother in Canada following the intervention of the Belgian and Canadian Prime Ministers.

2. Procedure and composition of the Court

The application was lodged on 16 April 2003 and declared admissible on 26 January 2006 following a public hearing at the Human Rights Building in Strasbourg.

Judgment was given by a Chamber of seven judges, composed as follows:

Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot),
Anatoli Kovler (Russian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), judges,
Paul Martens (Belgian), ad hoc judge,

and also Søren Nielsen, Section Registrar.

3. Summary of the judgment

Complaints

The applicants argued that Tabitha’s detention and deportation violated Articles 3, 8 and 13 (right to an effective remedy) of the Convention.

Decision of the Court

Article 3

Tabitha’s detention
Regarding Tabitha’s rights, the Court noted that Tabitha, who was only five years old, was held in the same conditions as adults. She was detained for almost two months in a centre that had initially been intended for adults, even though she was unaccompanied by her parents and no one had been assigned to look after her. No measures had been taken to ensure that she received proper counselling and educational assistance from a qualified person specially assigned to her. Indeed, the Belgian Government acknowledged that the place of detention was not adapted to her needs and that there had been no adequate structures in place at that time.

The Court considered that owing to her very young age, the fact that she was an illegal alien in a foreign land, that she was unaccompanied by her family from whom she had become separated and that she had been left to her own devices, Tabitha was in an extremely vulnerable situation.

The measures taken by the Belgian authorities were far from adequate in view of their obligation to take care of the child and the array of possibilities at their disposal. The conditions of detention had caused Tabitha considerable distress. The authorities who detained her could not have been unaware of the serious psychological effects that her detention in such conditions would have on her. In the Court's view, her detention demonstrated a lack of humanity to a degree that amounted to inhuman treatment.

The Court therefore held that Tabitha’s rights under Article 3 had been violated on account of her conditions of detention.

Regarding her mother’s rights, the evidence before the Court indicated that the only action which the Belgian authorities had taken with respect to Ms Mubilanzila Mayeka was to inform her that her daughter had been detained and to provide her with a telephone number where she could be reached. The Court had no doubt that, as a mother, Ms Mubilanzila Mayeka had suffered deep distress and anxiety as result of her daughter’s detention.

In these circumstances, it held that her rights under Article 3 had been violated by her daughter’s detention.

Tabitha’s deportation
Regarding Tabitha’s rights, The Court considered that the Belgian authorities had not sought to ensure that Tabitha would be properly looked after or had regard to the real situation she was likely to encounter when she returned to her country of origin. In view of the conditions of its implementation, her removal was bound to have caused her extreme anxiety and demonstrated such a total lack of humanity towards a very young, unaccompanied minor as to amount to inhuman treatment. The Court further found that, by deporting Tabitha, Belgium had violated its positive obligations to take requisite measures and preventive action.

It therefore held there had been a violation of Tabitha’s rights under Article 3 on account of her deportation.

Regarding her mother’s rights, the Court noted, in particular, that the Belgian authorities had not troubled to advise Ms Mubilanzila Mayeka of her daughter’s deportation and that she only became aware of her daughter’s expulsion when she tried to reach her on the telephone after she had already been deported. The Court had no doubt that this caused Ms Mubilanzila Mayeka deep anxiety. The disregard such conduct showed for her feelings and other evidence in the file led the Court to find that the threshold of gravity had been attained.

The Court therefore held that Ms Mubilanzila Mayeka’s rights under Article 3 had been violated by her daughter’s deportation.

Article 8

Tabitha’s detention
One of the consequences of Tabitha's detention was to separate her from her uncle, with the result that the she had become an unaccompanied alien minor, a category in respect of which there was a legal void at the time. The detention had significantly delayed her reunion with her mother. The Court further noted that, far from assisting her reunion with her mother, the authorities’ actions had hindered it. Having been informed from the outset that Ms Mubilanzila Mayeka was in Canada, the Belgian authorities should have made detailed inquiries of the Canadian authorities in order to clarify the position and bring about an early reunion of mother and daughter.

Since there was no risk of Tabitha’s seeking to evade the supervision of the Belgian authorities, her detention in a closed centre for adults served no purpose and other measures more conducive to the higher interest of the child guaranteed by Article 3 of the Convention on the Rights of the Child, could have been taken. Since Tabitha was an unaccompanied alien minor, Belgium was under an obligation to facilitate the reunion of the family.

In these circumstances, the Court held that both applicants’ rights under Article 8 had been violated.

Tabitha’s deportation
When they deported Tabitha the Belgian authorities not only failed to facilitate her reunion with her mother, they also failed to ensure that she would be cared for on her arrival in Kinshasa. Accordingly, Belgium had failed to comply with its positive obligations and had disproportionately interfered with the applicants’ rights to respect for their family life.

The Court therefore held that both applicants’ rights under Article 8 had been violated.

Article 5

Tabitha’s detention
Tabitha was detained in a closed centre intended for illegal foreign aliens in the same conditions as adults. Those conditions were not adapted to the position of extreme vulnerability in which she found herself as a result of her status as an unaccompanied alien minor. In those circumstances, the Court considered that the Belgian legal system at the time and as it functioned in the case before it had not sufficiently protected her right to liberty.

The Court therefore held that there had been a violation of Tabitha's rights under Article 5.

Tabitha’s deportation
The Court noted that the Belgian authorities had decided on the date of Tabitha’s departure the day after she lodged her application to the chambre de conseil for release from detention, that is to say even before the chambre de conseil had ruled on it. They had not sought to reconsider the position at any stage. Moreover, the deportation had proceeded despite the fact that the 24 hour-period for an appeal by the public prosecutor had not expired and that a stay applied during that period. Tabitha’s successful appeal against detention was thus rendered futile.

The Court therefore held that Tabitha’s rights under Article 5 § 4 had been violated and that no separate examination of the complaint under Article 13 was necessary.

Link to Full Judgement:
http://hudoc.echr.coe.int/eng?i=001-77445 (French)

http://hudoc.echr.coe.int/eng?i=001-77447 (English)

This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. 

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