Information Note on the Court’s case-law 41
April 2002
Kleuver v. Norway (dec.) - 45837/99
Decision 30.4.2002 [Section III]
Article 8
Article 8-1
Respect for family life
Detainee giving birth in detention on remand and unable to keep her baby with her in prison: inadmissible
The first applicant, a Dutch national, was arrested in Norway after a large quantity of drugs was found in her car. She was pregnant at the time. She was remanded in custody in March 1990 and attempted to abscond in May 1990. Between August and November 1990, she was regularly taken to hospital for prenatal checks. Most of the time she was accompanied by police officers in uniform and had to wear handcuffs during the journey and while in the waiting room with other patients. On one occasion, two male police officers stayed in the examination room where she was having an ultra-sound examination; it was considered that there was a risk that she might try to run away as the examination room was on the ground floor of the hospital. At the request of the midwife, one of the officers translated what the midwife and the first applicant wanted to say to each other during the examination. The first applicant complained of the police officers’ presence, but only at a later stage. In November 1990, the first applicant gave birth to the second applicant. While she was giving birth, two police officers sat outside the delivery room. The first applicant was transferred back to the prison nine days later. It was not considered suitable for the second applicant to stay with his mother in the prison, which did not have the necessary facilities, and he was placed in a nearby Child Care Centre with appropriate services. Until mid-December the first applicant was able to see her baby five times a week at the Centre; thereafter, the baby was brought to her every day. From 22 to 25 January 1991 the second applicant was hospitalised due to a lung virus. The first applicant was allowed to visit him but had to wear transport cuffs, i.e. a chain attached to one foot and to the opposite arm. On her return to the prison from the visits to the Centre and the hospital, the first applicant sometimes had to undergo body searches, and after 17 December 1990 body searches were occasionally carried out after the baby had visited her. The searches were motivated by the risk of drug abuse by the first applicant. As from 3 January 1991, the searches stopped, the first applicant having given a urine sample which proved negative in a drug test. On 5 February 1991 she was convicted and sentenced to 6 years’ imprisonment, a sentence which took into account the fact that she had given birth while in detention on remand and that it would be an extra burden for her to serve a long prison sentence in a foreign country. On 10 February 1991, at the first applicant’s initiative, the second applicant left for the Netherlands with his grandmother. The first applicant was able to call her mother and son 20 minutes a week, in accordance with the applicable rules. As of 30 October 1991 she was granted an extra call per week and as of February 1992 time restrictions on her telephone calls were withdrawn. She had several visits by her son at the prison after he had left Norway. She was eventually granted a pardon and released in July 1992.
Inadmissible under Article 8: As to the separation of the first and second applicants, their complaint concerned the fact that the authorities had failed to enable the first applicant to keep with her the second applicant during the three months that followed his birth, while she was detained almost exclusively on remand. Following this period, and a few days after her conviction, she sent the second applicant with his grandmother to the Netherlands. The first applicant could not legitimately claim that the competent national authorities ought to have taken special measures to secure her interest in having her baby with her in prison. Moreover, she was fully aware of her pregnancy when she engaged in the criminal offence that led to her conviction. Her detention in a closed prison with particular security arrangements was necessary in view of the seriousness of the offence she was suspected and later convicted of, and the risk of her absconding, in view of her attempt to escape in May 1990. Furthermore, the applicants’ interests were adequately protected by the manner in which they were treated by the authorities. During the first month, they were able to meet five times a week and, after that, every day. Particular steps were taken so that the mother’s views and interests would be taken into consideration. It was her decision that her baby would join his grandmother in the Netherlands, after which they visited the first applicant several times. The applicant was eventually pardoned and released so that she could return to the Netherlands and be reunited with the second applicant.
The first applicant further complained of the use of handcuffs on her while she was in the waiting room at the hospital where prenatal checks were carried out and when she visited the Child Care Centre, as well as the use of transport cuffs when she visited her son at the hospital. However, these measures were justified by the risk that she would abscond during visits outside the prison; there was nothing to indicate that they were meant to debase or humiliate her. On each occasion the responsible officer accompanying her assessed the need for using such means and these particular security measures were made necessary by the applicant’s own conduct. Similar considerations applied in respect of her complaint regarding the presence of police officers in uniform at one ultra-sound examination. The examination took place in a room of the hospital from which it could have been possible to abscond. The examination was not of an intimate character and one of the two police officers present served as a translator between the applicant and the midwife. It was not mentioned until after the examination that the presence of the police officers was considered unsuitable by the applicant. Therefore, there was nothing in this respect to suggest a breach of Article 8. The presence of police outside the delivery room during the birth did not amount to an interference transgressing the limits of Article 8 either. As regards the body searches which the applicant complained of, the reason for her arrest, namely drug smuggling, justified such a measure. The measures stopped once she agreed to give a urine sample which permitted a verification of possible drug abuse. The body searches did not exceed their purpose and were carried out by female prison guards without any physical contact. As to the limitations on telephone calls, they did not exceed what follows from ordinary and reasonable requirements of imprisonment. Taking the measures as whole, it could not be concluded that there had been any violation of Article 8.
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