Information Note on the Court’s case-law 260
March 2022
N.B. and Others v. France - 49775/20
Judgment 31.3.2022 [Section V]
Article 3
Degrading treatment
Inhuman treatment
Fourteen days’ administrative detention pending removal of an eight-year-old foreign national accompanied by his parents, in an unsuitable centre: violation
Article 34
Hinder the exercise of the right of application
Victim
Unjustified failure over a seven-day period to implement the interim measure aimed at ending the administrative detention pending removal of an underage foreign national: violation
Facts – A couple and their eight-year-old child, all Georgian nationals, were placed in administrative detention for fourteen days in the context of their forcible removal to Georgia.
The authorities did not release the applicants following a decision by the Court granting their request for interim measures under Rule 39 of the Rules of Court aimed at ending their detention.
Law – Article 3 (substantive limb)
The minor applicant had been accompanied by both his parents throughout the period of administrative detention. However, that fact did not release the authorities from their obligation to protect the child and to take appropriate steps to comply with the positive obligations arising out of Article 3. The minor’s particularly vulnerable situation was the decisive factor and took precedence over his parents’ status as unlawfully resident aliens.
With regard to the criterion concerning the child’s age, an eight-year-old child who could not be considered to have sufficient understanding of the situation in the present case was left in a position of particular vulnerability.
As to the criterion concerning the reception conditions, the administrative detention centre was authorised to receive families. In the earlier case of A.M. and Others v. France the Court had held (a) that the announcements made over the centre’s loudspeakers subjected detainees to excessive noise levels, and (b) that the courtyard of the family area was separated from the area occupied by other detainees only by a metal fence, allowing everything that happened inside to be observed. Furthermore, although equipment for children and babies was available, the security dimension was ever present in the administrative detention centre, which was adjacent to the prison.
As to the criterion concerning the length of detention, the national authorities had initially taken all the necessary steps to carry out the transfer as swiftly as possible and thus to minimise the period of administrative detention. The fact that the applicants had refused to board their flight was not decisive with regard to the question whether the prohibited threshold of severity had been exceeded in respect of the minor.
The administrative detention of an eight-year-old minor in the conditions prevailing in the detention centre, which had lasted for fourteen days, was excessive. In view of all the reasons given in the orders, and despite the fact that the Code on the Entry and Residence of Aliens and the Right of Asylum stipulated that “the child’s best interests must be a primary consideration”, the courts had not taken sufficient account of the child’s presence and his status as a minor before assessing the lawfulness of the initial placement in detention and ordering its extension for twenty-eight days in the context of the judicial review they were required to carry out.
Thus, owing to the child’s young age, the conditions of detention in the administrative detention centre and the length of detention, the competent authorities had subjected the minor to treatment exceeding the threshold of severity required under Article 3.
Conclusion: violation (unanimously).
The Court also held, unanimously, that there had been no violation of Article 3 with regard to the parents. While it accepted that their administrative detention with their underage child may have created a feeling of powerlessness, together with anxiety and frustration, their complaint concerning their suffering was not substantiated.
Article 34
The Government were notified on Friday 13 November 2020 of the interim measure indicated by the Court with a view to ending the applicants’ administrative detention pending the outcome of the proceedings before it. On 16 November 2020 the Court was alerted to the fact that the measure had not been implemented. After being asked to comment, the Government did not inform the Court until Friday 20 November 2020 that the applicants had been removed that day, thus putting an end to their detention.
The applicants’ administrative detention had not ended until seven days after notification of the interim measure.
In the absence of any reason justifying the failure to implement the interim measure, the authorities had not complied with their obligations under Article 34.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 EUR for the non-pecuniary damage sustained by the minor applicant.
(See also A.B. and Others v. France, 11593/12, 12 July 2016, Legal summary; A.M. and Others v. France, 24587/12, 12 July 2016, Legal summary; M.D. and A.D. v. France, 57035/18, 22 July 2021)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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