Conviction by the ECtHR for detaining a mother and her baby for 9 days before transferring them to another country
JUDGMENT
A.C. and M.C. v. France 04.05.2023 (app. no. 4289/21)
SUMMARY
Detention of the applicant and her minor son, aged 7.5 months, for a period of nine days with a view to their transfer to Spain. The minor applicant was accompanied by his mother during the period of detention.
The applicants argued that their detention was contrary to Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life). The minor applicant, M.C., argued that his detention also violated Article 5 § 1 (right to personal liberty and security). Relying on Article 5 § 4 (right to a speedy review of the lawfulness of detention), M.C. he also claimed that he had no effective remedy against the order for his administrative detention.
The Court found a violation of Article 5 § 4 of the Convention in relation to M.C. regarding the extension of administrative detention, violation of Article 3 for both applicants and violation of Article 5 § 1 and 4 as regards M.C regarding prolonged detention in prison.
The ECtHR awarded the applicants 10,000 euros for moral damage and 9,000 euros for costs.
PROVISIONS
Article 5 par. 1
Article 5 par. 4
PRINCIPAL FACTS
The applicants, A.C. and M.C., a mother and her son, are Guinean nationals who were born in 1997 and 2020 respectively. The case concerned the detention of the first applicant and her minor son, aged 7.5 months, for a period of 9 days with a view to their transfer to Spain under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III Regulation”)
THE DECISION OF THE COURT…
ARTICLE 3
The Court noted that in the present case, the minor applicant was accompanied by his mother during the period of detention. However, he recalled, as in the case of A.B. etc. v. France of 12.07.2016 (app. no. 11593/12, § 110) that this circumstance is not such as to exempt the authorities from their obligation to protect the minor child and take appropriate measures within the framework of positive obligations deriving from article 3. It should be taken into account that the situation of particular vulnerability of the minor child was decisive and prevailed over the illegal residence status of his parent.
Regarding the criterion regarding the child’s age, the Court noted that the child was a minor aged 7.5 months at the date of administrative detention. Even if age is only one of the three criteria to be combined together, he recalls that, in the case of A.M. etc. v. France of 12.07.2016 (no. 24587/12) and M.D. and A.D. v. France (cited above), found a violation of Article 3 with regard to infants.
As regards the criterion concerning reception conditions, the Court had already found that the Metz-Queuleu reception center is among those which were allowed to receive families. The Court had also previously pointed out that loudspeaker announcements from the center exposed those detained there to severe noise pollution. In these two cases, he had noted that the outer courtyard dedicated to the families is separated by only a simple fence from the area reserved for other prisoners, thus allowing everything that happens to be seen. In addition, whether equipment was available for children and infants, it emerged from the findings of the Auditor General of Deprivation of Liberty Places referred to in the case of N.B. etc. v. France that the Metz-Queuleu detention center, which is adjacent to the prison, is characterized by the presence of security.
The Court had already pointed out that the reception conditions at the Metz-Queuleu detention centre, although necessarily significant sources of stress and anxiety for a young child, were not in themselves sufficient to meet the threshold of severity required to fall within article 3. It affirmed, on the other hand, that beyond a short period of detention, the repetition and accumulation of the effects caused, especially at the mental and emotional level, by the deprivation of liberty necessarily had harmful effects on a young child, then the aforementioned severity limit. Therefore, the passage of time was of particular importance in this regard.
Regarding the application of the criterion regarding the duration of detention, the ECtHR noted that even if, as the Government claims, the national authorities initially took all the necessary measures to carry out the transfer measure as quickly as possible and thus limit the duration of the detention as long as possible, the absolute right protected by Article 3 prohibits an unaccompanied minor from being detained under the aforementioned conditions for an excessive length of time.
Taking into account the very young age of the second applicant, the conditions of reception in the Metz-Queuleu detention center and the duration of detention which lasted 9 days, the Court considered that the competent authorities subjected the child to treatment which exceeded the threshold of severity required by article 3. Bearing in mind the unbreakable bonds between a mother and her 7.5-month-old baby, as well as the feelings they share, the Court considered that the same was true, in the particular circumstances of the case, in the case of the first applicant.
The ECtHR found a violation of Article 3 of the ECHR.
ARTICLE 5 PAR. 1
In the present case, it appeared from the order of 12 January 2021 ordering the initial detention of the first applicant that the prefectural authority requested, if taking into account the infant, a less restrictive measure than detention would be possible. He considered that, in the context of the speedy execution of the applicants’ transfer to Spain, it was no longer possible to resort to the house arrest measures that had been initially applied, taking into account the risk of flight that had been revealed, his view, on the one hand, from the intention of adult applicant to refuse to carry out the transfer procedure, manifested by her refusal to accept the voluntary offer of transfer and, on the other hand, the concealment of her identity details. The prefectural authority also ruled that neither the statements of A.C. nor did the documents in the file reveal a state of vulnerability likely to preclude detention, while pointing out the possibility for the latter to request an assessment of her vulnerability from the administrative detention center.
Regarding the extension of the applicants’ detention until 14 January 2021, the judge released confirmed on appeal, on 18 January 2021, if it does not belong to it in principle, in the context of the control of compliance with Article 5 § 1, to substitute its assessment for that of the national authorities, the Court had to to verify, in the case of a minor child, whether the measure in question was necessary to achieve the objective it seeks.
However, the Court considered that it had sufficient information, which led, taking into account the conditions of detention, to a finding of a violation of Article 3 of the Convention, because it considered that the domestic authorities did not sufficiently verify, in the context of the application of the legal regime in force in France , that the extension of the administrative detention of the first applicant accompanied by her minor child for a period of 28 days, although approved on January 14, 2021 with a view to departure scheduled for the same day, was a measure of last resort for which no other less restrictive one could be substituted.
The ECtHR found a violation of Article 5 § 1 in relation to M.C. regarding the extension of administrative detention.
ARTICLE 5 PAR. 4
In the present case, regarding the judicial review of the initial placement of the applicant accompanied by her minor child, the Court ruled that the judges sufficiently took into account the presence of the minor child, in the assessments made to review the legality of the initial detention. The orders of 14 and 18 January 2021 stated that the detention of A.C., accompanied by M.C., a minor child aged a few months, should be as soon as possible, since the flight to Spain is scheduled for the day following their detention and exclusively for transportation restrictions.
On the other hand, with regard to the judicial review of the extension of detention, the Court noted, taking into account all the reasons of the orders of 14 and 18 January 2021, that although French law provides that on the matter “the best interest of of a child must be a primary concern’ the domestic judges did not take sufficient account of the presence of the applicant M.C. and his status as a minor child, before ordering the extension of administrative detention for a period of 28 days as part of the judicial review which it was their responsibility to exercise.
The ECtHR found a violation of Article 5 § 1 on the grounds that the domestic authorities had not sufficiently verified, in the context of the application of the legal regime in force in France, that the extension of the administrative detention of the first applicant accompanied by her minor child was a measure of last resort which could not be substituted by a less restrictive measure. This lack of effective verification of the conditions concerning both the legality of the detention measure under domestic law and the principle of legality within the meaning of the ECHR is particularly attributable to the national courts, which were responsible for effectively ensuring the lawfulness of detention by placing the minor child in custody. Therefore, with regard to the extension of administrative detention, the applicant M.C. it did not benefit from a review of all the conditions under which the legality of the detention is subject.
It therefore found a violation of Article 5 § 4 of the Convention in relation to M.C. regarding the extension of administrative detention, violation of Article 3 for both applicants, violation of Article 5 § 1 and 4 regarding M.C regarding prolonged detention in prison.
Just satisfaction (Article 41)
The ECtHR awarded the applicants 10,000 euros for moral damage and 9,000 euros for costs (edited by echrcaselaw.com).
