I.F. AND I.F.F. v. NORWAY

FIFTH SECTION

DECISION

This version was rectified on 27 August 2018
under Rule 81 of the Rules of Court.

Applications nos. 62363/16 and 62803/16
I.F. against Norway
and I.F.F. against Norway

The European Court of Human Rights (Fifth Section), sitting on 5 June 2018 as a Committee composed of:

Síofra O’Leary, President,
Erik Møse,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above applications lodged on 26 October 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicant in the first case, Mr I.F., is an Afghan national, who was born in 1992. The applicant in the second case is his daughter, Ms I.F.F., an Afghan national, who was born in 2014. They were in Norway prior to being deported in 2016. Before the Court they were represented by Mr E. Bjørge. The Committee decided of its own motion to grant the applicants anonymity pursuant to Rule 47 § 4 of the Rules of Court.

A. The circumstances of the cases

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

3. Ms S. arrived in Norway in January 2013 and was granted asylum on 9 March that year, on the grounds that she was an unmarried Afghan woman with no network in her country of origin. Mr I.F. arrived in Norway in June 2013. They had both come via Iran.

4. On 31 March 2014 the immigration authorities revoked the decision to grant Ms S. asylum, as they concluded that she had married Mr I.F. during their time in Iran. In November 2014 Ms S. gave birth to their daughter, the applicant in the second case.

5. Ms S. and Mr I.F.’s applications to stay in Norway were finally rejected by the Immigration Appeals Board (Utlendingsnemnda) on 21 April 2015. The deadline for voluntary departure was set to May 2015.

6. On 19 May 2016 the Oslo City Court (tingrett) granted the police’s request to authorise that the family, pending their removal to Afghanistan, could be detained at the Police Immigration Detention Centre at Trandum (“Trandum”) until no later than 2 June 2016.

7. With respect to the daughter, the City Court examined the proportionality of the detention in light of Article 3 of the 1989 United Nations Convention on the Rights of the Child (see paragraph 16 below). The City Court stated that the maximum period of detention when children were involved was 14 days, and that it was not ideal for the daughter in question to stay at Trandum. However, the City Court had been informed that the family would be placed at a department adapted for families with small children and that the police had been in close contact with the child welfare authorities, who had had no remarks to a stay at the detention centre in question. For the time the detention would last, the City Court considered that it would be in the girl’s best interest to stay with her family at Trandum. Splitting up the family would not be appropriate – on the contrary, it was necessary to keep the family together. They could then also be returned together.

8. On 2 June 2016 the City Court authorised prolonged detention until no later than 11 June 2016.

9. The family appealed against the decision and counsel submitted a supporting document on 9 June 2016. In its response of 16 June 2016 the police stated that the family had been deported on 11 June. The case file was transmitted to the Borgarting High Court (lagmannsrett) on 16 June 2016, and the following day that court decided to discontinue (heve) the appeal case as the family, having already been deported, no longer had standing to pursue the appeal.

10. On 24 June 2016 the family appealed against the High Court’s decision to the Supreme Court (Høyesterett). In the declaration of appeal they stated that the High Court had left out any reference to Mr I.F. and the daughter, Ms I.F.F., in its decision, although all family members had been appellants. Furthermore, they argued that the High Court had not answered their appeal against the City Court’s decision, as the appeal had been based on the unlawfulness of detaining the family with their child at Trandum as that had been done in the case.

11. On 1 July 2016 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg), in separate decisions for each of the parents, rejected their appeals as the Committee found that they had no prospects of success.

B. Relevant domestic law and practice and international law material

12. The Norwegian Constitution (Grunnloven) of 17 May 1814 contains the following relevant provisions:

Article 93

“Every human being has the right to life. No one may be sentenced to death.

No one may be subjected to torture or other inhuman or degrading treatment or punishment.

No one shall be held in slavery or required to perform forced labour.

The authorities of the State shall protect the right to life and oppose torture, slavery, forced labour and other forms of inhuman or degrading treatment.”

Article 94

“No one may be taken into custody or otherwise be deprived of their liberty except in the cases determined by law and in the manner prescribed by law. Deprivation of liberty must be necessary and must not constitute a disproportionate infringement.

Persons arrested shall as soon as possible be brought before a court. Others who have been deprived of their liberty have the right to bring their deprivation of liberty before a court without unjustified delay.

Those responsible for the unwarranted arrest or illegal detention of a person shall be answerable to the person concerned.”

13. In a judgment of 31 May 2017 the Borgarting High Court accepted several claims from two Afghan parents and four of their children who had, before they were deported to Afghanistan, been kept at Trandum for three weeks. The High Court held that the detention of the four children was a violation of their rights under the second paragraph of Article 93 and the second sentence in the first paragraph of Article 94 of the Constitution (see paragraph 12 above); Articles 3, 5 § 1 and 8 of the Convention; and Article 37 (a) and (b) of the 1989 United Nations Convention on the Rights of the Child (see paragraph 16 above). The detention was also in breach of the parents’ rights under Article 8 of the Convention. The Government were ordered to pay 40,000 Norwegian kroner (NOK) (about 4,000 euros (EUR)) in non-pecuniary redress (oppreisning) to each of the children and NOK 25,000 (about EUR 2,500) to each parent. The High Court did not find any violation of the parents’ rights under Articles 93 and 94 of the Constitution, Articles 3 and 5 of the Convention or of the children’s rights under the first sentence in the first paragraph of Article 94 of the Constitution. The plaintiffs recovered their litigation costs. A separate decision (kjennelse) dismissed the family’s action for a declaratory judgment relating to Article 3 of the 1989 United Nations Convention on the Rights of the Child.

14. No appeal against the High Court’s judgment or decision was lodged by any of the parties.

15. The background of that case can be summarised as follows. On 12 August 2014 the Oslo City Court had authorised that the family be kept at Trandum for three weeks, in order to carry out their deportation which had been scheduled for 30 August 2014. They appealed against the decision to the High Court, which upheld it. Their further appeal to the Supreme Court had ultimately been discontinued because the family had meanwhile been deported to Afghanistan. Some months subsequent to their deportation the family brought civil proceedings for compensation and declarations that their rights under Articles 94 and 98 (discrimination) of the Norwegian Constitution and Articles 5 § 1 (f) and 14 of the Convention had been violated because of their detention at Trandum. A hearing was held in September 2015, where family members gave evidence by video link and two witnesses were heard. On 28 September 2015 the City Court rendered judgment concluding that the plaintiffs’ rights had not been violated. On appeal, the Borgarting High Court held a hearing from 8 to 10 March 2017. Two family members gave evidence via video link from Afghanistan and four other witnesses were heard, one of them in connection with the High Court’s inspection of the conditions at Trandum. Before the High Court, the plaintiffs invoked Articles 93 and 94 of the Constitution; Articles 3, 5 and 8 of the Convention; and Articles 3 and 37 of the 1989 United Nations Convention on the Rights of the Child. Most of their claims were granted (see paragraph 13 above).

16. The United Nations Convention on the Rights of the Child, concluded in New York on 20 November 1989, contains the following relevant provisions:

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 37

“States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(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;

...”

COMPLAINTS

17. The applicants complained under Article 8 of the Convention that the detention constituted a disproportionate interference with their right to respect for their private and family life. They further submitted that detaining the family with the small child constituted inhuman or degrading treatment prohibited by Article 3. Moreover, they maintained that the detention entailed a breach of Article 5 § 1 in so far as it had not been established that the authorities could not have resorted to less intrusive measures and because the domestic law had not satisfied the requirements of quality and clarity pursuant to Article 5 § 1 (f).

THE LAW

18. The applicants both complained that their detention at Trandum entailed a violation of Articles 3, 5 and 8 of the Convention, which read:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

...”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

19. In view of the similarity between the applications in terms of the facts and the issues they raise, the Court decides to join them and to examine them jointly in a single decision.

20. The Court reiterates that it is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see, for example, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014, and Chiragov and Others v. Armenia [GC], no. 13216/05, § 115, ECHR 2015). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see, for instance, Vučković and Others, cited above, § 74).

21. In the specific context of complaints of inhuman or degrading conditions of detention, the Court has observed that two types of relief are possible: an improvement in the material conditions of detention, and compensation for the damage or loss sustained on account of such conditions (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 97, 10 January 2012). If an applicant has been held in conditions in breach of Article 3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she has endured the inadequate conditions, what remains relevant is that he or she should have an enforceable right to compensation for the violation that has already occurred (ibid.).

22. Where the fundamental right to protection against torture, inhuman and degrading treatment is concerned, the preventive and compensatory remedies have to be complementary in order to be considered effective. The existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. Indeed, the special importance attached by the Convention to this provision requires the States parties to establish, over and above a compensatory remedy, an effective mechanism in order to put an end to such treatment rapidly (see, for example, Ananyev and Others, cited above, § 98, with further references). The need, however, to have both of those remedies does not imply that they should be available in the same judicial proceedings (see, for example, Story and Others v. Malta, nos. 56854/13 and 2 others, § 73, 29 October 2015).

23. In order to satisfy the requirements of Article 13, which has a close affinity with the rule of exhaustion of domestic remedies, a decision must be binding and enforceable and must come from an authority that has a sufficiently independent standpoint (see, for example, Story and Others, cited above, § 76).

24. Turning to the instant cases, the Court notes that the applicants could appeal against the decision to keep them at the detention centre in question – Trandum – while they were there, as they did (see paragraph 9 above). Since they left the centre on 11 June 2016[1], what remains relevant is whether they had an enforceable right to compensation for violations that had allegedly occurred.

25. In this respect the Court observes that the situation is similar to that in the High Court’s judgment of 31 May 2017 (see paragraphs 13-15 above). Also that case concerned claims from a family that had been previously detained at Trandum, to the effect that their detention there had entailed a breach of their Convention rights. Like the applicants in the instant cases, the plaintiffs in that case had been removed to Afghanistan and maintained their grievances therefrom. The Convention provisions invoked before the domestic courts in that case were the same as those referred to in the present proceedings before the Court, and the complaints were essentially similar. Furthermore, the plaintiffs in the case before the Norwegian courts, as the applicants in the present case, sought a declaratory judgment that their Convention rights had been violated as well as non-pecuniary redress.

26. With the High Court’s judgment of 31 May 2017 the plaintiffs in that case obtained a review of whether their stay at Trandum had entailed breaches of Articles 3, 5 or 8 of the Convention with respect to any of them. The High Court concluded affirmatively as concerned all the invoked provisions with respect to the children. As to the adults, it concluded that there had been a breach of Article 8 only. The adults were each awarded compensation of approximately EUR 2,500 and the children each approximately EUR 4,000. The operative part contained declaratory judgments stating that the Convention had been violated, in so far as that had been concluded (see paragraph 13 above). The judgment became final and binding when none of the parties appealed against it (see paragraph 14 above).

27. In light of the above, the Court finds that civil proceedings as in the mentioned High Court case (see paragraphs 13-15 and 24-25 above) provide an adequate and effective remedy for violations such as those which the applicants now allege before the Court. Furthermore, there is no information to the extent that practical reasons have hindered the applicants in making use of the possibility of bringing any such proceedings in respect of their complaints.

28. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies in respect of their Convention grievances.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 28 June 2018.

Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident

[1] Rectified on 27 August 2018: the date was “11 June 2017”.

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