The right to respect for family life is grounded in the protection of family integrity. Family can be based inter alia on blood ties, economic ties, marriage and adoption. The European Court has generally considered family to consist of husband and wife and children who are dependent on them. The relationships between brothers and sisters and in some instances relationships with grandparents are protected under Article 8 (seeVermeire v. Belgium, Application No. 12849/8, Judgement of 29 November 1991). Some weight is also placed on de jure family life through marriage, but more on de facto family life through daily practice, leaving the option to evaluate each family unit claim on a case-by-case basis. Given modern changes in the social and cultural patterns of family life, this flexibility is important. In Berrehab v. The Netherlands (Application No. 10730/84, Judgement of 21 June 1988), the Court held that in case of a lawful and genuine marriage:
It follows from the concept of family life on which Article 8 is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to “family life”, even if the parents are not living together.
Although the Court did not see cohabitation as a sine qua non of family life between parents and minor children, ‘irregular’ living arrangements have complicated determination of the existence of family life and the states’ obligations towards the individual.
The Human Rights Committee has in General Comment 16 interpreted the term family broadly ‘to include all those comprising the family as understood in the society of the State party concerned.’ In Hopu and Bessert v. France , the Committee discussed the definition of family.
Hopu and Bessert v. France
Human Rights Committee
Communication No. 549/1993
Views of 29 July 1997
Keywords: family - effective remedy – minorities – language - non- discrimination
[?]
The facts as submitted by the authors:
2.1 The authors are the descendants of the owners of a land tract (approximately 4.5 hectares) called Tetaitapu, in Nuuroa, on the island of Tahiti. They argue that their ancestors were dispossessed of their property by jugement de licitation of the Tribunal civil d’instance of Papeete on 6 October 1961. Under the terms of the judgment, ownership of the land was awarded to the Société hotelière du Pacifique sud (SHPS). Since the year 1988, the Territory of Polynesia is the sole shareholder of this company.
2.2 In 1990, the SHPS leased the land to the Société d’étude et de promotion hotelière, which in turn subleased it to the Société hotelière RIVNAC. RIVNAC seeks to begin construction work on a luxury hotel complex on the site, which borders a lagoon, as soon as possible. [?].
2.3 The authors and other descendants of the owners of the land peacefully occupied the site in July 1992, in protest against the planned construction of the hotel complex. They contend that the land and the lagoon bordering it represent an important place in their history, their culture and their life. They add that the land encompasses the site of a pre-European burial ground and that the lagoon remains a traditional fishing ground and provides the means of subsistence for some thirty families living next to the lagoon.
[?]
2.5 The authors contend that the pursuit of the construction work would destroy their traditional burial ground and ruinously affect their fishing activities. [?].
The complaint
3.1 The authors allege a violation of article 2, paragraph 3(a), juncto 14, paragraph 1, on the ground that they have not been able to petition lawfully established courts for an effective remedy. In this connection, they note that land claims and disputes in Tahiti were traditionally settled by indigenous tribunals (“tribunaux indigènes”), and that the jurisdiction of these tribunals was recognized by France when Tahiti came under French sovereignty in 1880. However, it is submitted that since 1936, when the so-called High Court of Tahiti ceased to function, the State party has failed to take appropriate measures to keep these indigenous tribunals in operation; as a result, the authors submit, land claims have been haphazardly and unlawfully adjudicated by civil and administrative tribunals.
3.2 The authors further claim a violation of articles 17, paragraph 1, and 23, paragraph 1, on the ground that their forceful removal from the disputed site and the realization of the hotel complex would entail the destruction of the burial ground, where members of their family are said to be buried, and because such removal would interfere with their private and their family lives.
3.3 The authors claim to be victims of a violation of article 2, paragraph 1. They contend that Polynesians are not protected by laws and regulations (such as articles R 361 (1) and 361 (2) of the Code des Communes, concerning cemeteries, as well as legislation concerning natural sites and archaeological excavations) which have been issued for the territoire métropolitain and which are said to govern the protection of burial grounds. They thus claim to be victims of discrimination.
3.4 Finally, the authors claim a violation of article 27 of the Covenant, since they are denied the right to enjoy their own culture.
[?]
Examination of the merits
[?]
10.3 The authors claim that the construction of the hotel complex on the contested site would destroy their ancestral burial grounds, which represent an important place in their history, culture and life, and would arbitrarily interfere with their privacy and their family lives, in violation of articles 17 and 23. They also claim that members of their family are buried on the site. The Committee observes that the objectives of the Covenant require that the term “family” be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term “family” in a specific situation. It transpires from the authors’ claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life. This has not been challenged by the State party; nor has the State party contested the argument that the burial grounds in question play an important role in the authors’ history, culture and life. The State party has disputed the authors’ claim only on the basis that they have failed to establish a kinship link between the remains discovered in the burial grounds and themselves. The Committee considers that the authors’ failure to establish a direct kinship link cannot be held against them in the circumstances of the communication, where the burial grounds in question pre-date the arrival of European settlers and are recognized as including the forbears of the present Polynesian inhabitants of Tahiti. The Committee therefore concludes that the construction of a hotel complex on the authors’ ancestral burial grounds did interfere with their right to family and privacy. The State party has not shown that this interference was reasonable in the circumstances, and nothing in the information before the Committee shows that the State party duly took into account the importance of the burial grounds for the authors, when it decided to lease the site for the building of a hotel complex. The Committee concludes that there has been an arbitrary interference with the authors’ right to family and privacy, in violation of articles 17, paragraph 1, and 23, paragraph 1.
[?]
Comment
Here it should be noted that specific circumstances applied in this case, as it would have been dealt with under Article 26 (non- discrimination) had it not been for the state party’s declaration, upheld by the Committee as a valid reservation in earlier cases. Hence, Article 26 values were read into Articles 17 and 23 by the majority but contested by a minority. The Committee elaborated on the fact that cultural traditions are to be taken into account when defining family in a particular society, concluding that construction of a hotel on ancient burial grounds constituted an arbitrary interference with privacy and family.
In Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius (Communication No. 035/1978, Views of 9 April 1981, summarised in the right to equality and non-discrimination, Discrimination on grounds of sex ) the Committee found that the applicant’s relationships to their husbands clearly belonged to the area of ‘family’ as used in Article 17 (1) and that:
[T]he common residence of husband and wife has to be considered as the normal behaviour of a family. Hence, and as the State party has admitted, the exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of Article 17. In principle, Article 17 (1) applies also when one of the spouses is an alien. Whether the existence and application of immigration laws affecting the residence of a family member is compatible with the Covenant depends on whether such interference is either “arbitrary or unlawful” as stated in Article 17 (1), or conflicts in any other way with the State party’s obligations under the Covenant.
9.2 [?] In the present cases, not only the future possibility of deportation, but the existing precarious residence situation of foreign husbands in Mauritius represents, in the opinion of the Committee, an interference by the authorities of the State party with the family life of the Mauritian wives and their husbands. The statutes in question have rendered it uncertain for the families concerned whether and for how long it will be possible for them to continue their family life by residing together in Mauritius. [?]
The Committee went on to find the interference ‘in accordance with law’ but as the facts showed that the legislation discriminated on grounds of sex, granting non-national wives of Mauritian men unlimited residency, while non-national husbands of Mauritian women were required to obtain official residency permits, it was not necessary to examine whether the interference was arbitrary within the meaning of the Covenant. The Committee found a violation of the right to equal treatment in conjunction with Article 17. Similarly, the European case of Abdulaziz, Cabales and Balkandali v. The United Kingdom (Application Nos. 9214/80, 9473/81, 9474/81, Judgement of 28 May 1985) dealt with interference with family as women who were legally married or engaged had been unable to establish fully normal family life due to restrictive immigration laws.
Although the European Court appears to favour vertical family relationships (children/parents/grandparents) over ‘horizontal’ relationships (siblings/nephews/nieces), siblings may have a right to enjoy family life with each other (see Olsson v. Sweden , Application No. 10465/83, Judgement of 24 March 1988). The Court has also established that family encompasses de facto relationships in addition to those established by marriage. Whether a relationship can be said to amount to ‘family life’ depends on a number of factors such as whether the couple lives together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means (see Marckx v. Belgium , Application No.6833/74, Judgement of 13 June 1979,Keegan v. Ireland , Application No.16969/90, Judgement of 26 May 1994 and Kroon et al. v. The Netherlands , Application No. 18535/91, Judgement of 27 October 1994). In the case of Abdulaziz, Cabales and Balkandali v. The United Kingdom, the Court found that ‘this does not mean that all intended family life falls entirely outside [Article 8’s] ambit’. In X.Y.Z v. The United Kingdom, the European Court established that family is not limited to relationships established by blood or marriage.
X. Y. and Z. v. The United Kingdom
European Court of Human Rights
Application No. 21830/93
Judgement of 22 April 1997
Keywords: family life, concept of - transsexuals, parental rights of - private life
[?]
As to the facts
I. The circumstances of the case
12. The applicants are British citizens, resident in Manchester, England.
The first applicant, “X”, was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns “he”, “him” and “his”.
Since 1979 he has lived in a permanent and stable union with the second applicant, “Y”, a woman born in 1959. The third applicant, “Z”, was born in 1992 to the second applicant as a result of artificial insemination by donor (“AID”). Y has subsequently given birth to a second child by the same method.
[?]
16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992.
17. In February 1992, X had enquired of the Registrar General (see paragraph 22 below) whether there was an objection to his being registered as the father of Y’s child. In a reply dated 4 June 1992 to X’s Member of Parliament, the Minister of Health replied that, having taken legal advice, the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration. It was pointed out that the child could lawfully bear X’s surname and, subject to the relevant conditions, X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child.
18. Nonetheless, following Z’s birth, X and Y attempted to register the child in their joint names as mother and father. However, X was not permitted to be registered as the child’s father and that part of the register was left blank. Z was given X’s surname in the register (see paragraph 24 below).
[?]
As to the law
I. Alleged violation of Article 8 of the Convention
32. The applicants, with whom the Commission agreed, submitted that the lack of legal recognition of the relationship between X and Z amounted to a violation of Article 8 of the Convention [?].
The Government denied that Article 8 was applicable and, in the alternative, claimed that there had been no violation.
A. The existence of “family life”
33. The applicants submitted that they had shared a “family life” within the meaning of Article 8 since Z’s birth. They emphasised that, according to the jurisprudence of the Commission and the Court, social reality, rather than formal legal status, was decisive. Thus, it was important to note that X had irrevocably changed many of his physical characteristics and provided financial and emotional support to Y and Z. To all appearances, the applicants lived as a traditional family.
[?]
37. In the present case, the Court notes that X is a transsexual who has undergone gender reassignment surgery. He has lived with Y, to all appearances as her male partner, since 1979. The couple applied jointly for, and were granted, treatment by AID to allow Y to have a child. X was involved throughout that process and has acted as Z’s “father” in every respect since the birth [?]. In these circumstances, the Court considers that de facto family ties link the three applicants.
It follows that Article 8 is applicable.
B. Compliance with Article 8
1. The arguments as to the applicable general principles
38. The applicants pointed out that the Court had recognised in its Rees v. the United Kingdom judgment [?] that the need for appropriate legal measures affecting transsexuals should be kept under review having regard in particular to scientific and societal developments. They maintained that there had been significant development since that decision [?]. The Court should now hold that the notion of respect for family and/or private life required States to recognise the present sexual identity of post-operative transsexuals for legal purposes, including parental rights.
However, they also emphasised that the issue in their case was very different from that in Rees and Cossey, since X was not seeking to amend his own birth certificate but rather to be named in Z’s birth certificate as her father. They submitted that the margin of appreciation afforded to the respondent State should be narrower in such a case and the need for positive action to ensure respect much stronger, having regard to the interests of the child in having her social father recognised as such by law.
[?]
40. The Commission referred to a clear trend within the Contracting States towards the legal recognition of gender reassignment. It took the view that, in the case of a transsexual who had undergone reassignment surgery in the Contracting State and who lived there as part of a family relationship, there had to be a presumption in favour of legal recognition of that relationship, the denial of which required special justification.
2. The Court’s general approach
41. The Court reiterates that, although the essential object of Article 8 is to protect the individual against arbitrary interferences by the public authorities, there may in addition be positive obligations inherent in an effective respect for private or family life. The boundaries between the State’s positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in both cases the State enjoys a certain margin of appreciation [?].
42. The present case is distinguishable from the previous cases concerning transsexuals which have been brought before the Court [?] because here the applicants’ complaint is not that the domestic law makes no provision for the recognition of the transsexual’s change of identity, but rather that it is not possible for such a person to be registered as the father of a child; indeed, it is for this reason that the Court is examining this case in relation to family, rather than private, life (see paragraph 37 above).
43. It is true that the Court has held in the past that where the existence of a family tie with a child has been established, the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible, from the moment of birth or as soon as practicable thereafter, the child’s integration in his family [?]. However, hitherto in this context it has been called upon to consider only family ties existing between biological parents and their offspring. The present case raises different issues, since Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual.
44. The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals. [?]
Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation [?]
3. Whether a fair balance was struck in the instant case
45. The applicants, with whom the Commission agreed, argued that a number of consequences flowed from the lack of legal recognition of X’s role as father. Perhaps most importantly, the child’s sense of security within the family might be undermined. Furthermore, the absence of X’s name on her birth certificate might cause distress on those occasions when a full-length certificate had to be produced, for example on registration with a doctor or school, if an assurance policy was taken out on her life or when she applied for a passport. Although Z was a British citizen by birth and could trace connection through her mother in immigration and nationality matters, problems could still arise if X sought to work abroad. For example, he had already had to turn down an offer of employment in Botswana because he had been informed that Y and Z would not have been recognised as his “dependents” and would not, therefore, have been entitled to receive certain benefits (see paragraph 19 above). Moreover, in contrast to the position where a parent-child relationship was recognised by law, Z could not inherit from X on intestacy or succeed to certain tenancies on X’s death. The possibility of X obtaining a residence order in respect of Z (see paragraph 27 above) did not satisfy the requirement of respect, since this would entail the incurring of legal expense and an investigation by a court welfare officer which might distress the child.
In their submission, it was apparent that the legal recognition sought would not interfere with the rights of others or require any fundamental reorganisation of the United Kingdom system of registration of births, since the Human Fertility and Embryology Act 1990 allowed a man who was not a transsexual to be registered as the father of a child born to his female partner by AID (see paragraph 21 above).
[?]
47. First, the Court observes that the community as a whole has an interest in maintaining a coherent system of family law which places the best interests of the child at the forefront. In this respect, the Court notes that, whilst it has not been suggested that the amendment to the law sought by the applicants would be harmful to the interests of Z or of children conceived by AID in general, it is not clear that it would necessarily be to the advantage of such children.
In these circumstances, the Court considers that the State may justifiably be cautious in changing the law, since it is possible that the amendment sought might have undesirable or unforeseen ramifications for children in Z’s position. Furthermore, such an amendment might have implications in other areas of family law. For example, the law might be open to criticism on the ground of inconsistency if a female-to-male transsexual were granted the possibility of becoming a “father” in law while still being treated for other legal purposes as female and capable of contracting marriage to a man.
48. Against these general interests, the Court must weigh the disadvantages suffered by the applicants as a result of the refusal to recognise X in law as Z’s “father”.
The applicants identify a number of legal consequences flowing from this lack of recognition (see paragraph 45 above). For example, they point to the fact that if X were to die intestate, Z would have no automatic right of inheritance. The Court notes, however, that the problem could be solved in practice if X were to make a will. No evidence has been adduced to show that X is the beneficiary of any transmissible tenancies of the type referred to; similarly, since Z is a British citizen by birth and can trace connection through her mother in immigration and nationality matters, she will not be disadvantaged in this respect by the lack of a legal relationship with X.
The Court considers, therefore, that these legal consequences would be unlikely to cause undue hardship given the facts of the present case.
49. In addition, the applicants claimed that Z might suffer various social or developmental difficulties. Thus, it was argued that she would be caused distress on those occasions when it was necessary to produce her birth certificate.
In relation to the absence of X’s name on the birth certificate, the Court notes, first, that unless X and Y choose to make such information public, neither the child nor any third party will know that this absence is a consequence of the fact that X was born female. It follows that the applicants are in a similar position to any other family where, for whatever reason, the person who performs the role of the child’s “father” is not registered as such. The Court does not find it established that any particular stigma still attaches to children or families in such circumstances.
Secondly, the Court recalls that in the United Kingdom a birth certificate is not in common use for administrative or identification purposes and that there are few occasions when it is necessary to produce a full length certificate (see paragraph 24 above).
50. The applicants were also concerned, more generally, that Z’s sense of personal identity and security within her family would be affected by the lack of legal recognition of X as father.
In this respect, the Court notes that X is not prevented in any way from acting as Z’s father in the social sense. Thus, for example, he lives with her, providing emotional and financial support to her and Y, and he is free to describe himself to her and others as her “father” and to give her his surname (see paragraph 24 above). Furthermore, together with Y, he could apply for a joint residence order in respect of Z, which would automatically confer on them full parental responsibility for her in English law (see paragraph 27 above).
51. It is impossible to predict the extent to which the absence of a legal connection between X and Z will affect the latter’s development. As previously mentioned, at the present time there is uncertainty with regard to how the interests of children in Z’s position can best be protected (see paragraph 44 above) and the Court should not adopt or impose any single viewpoint.
52. In conclusion, given that transsexuality raises complex scientific, legal, moral and social issues, in respect of which there is no generally shared approach among the Contracting States, the Court is of the opinion that Article 8 cannot, in this context, be taken to imply an obligation for the respondent State formally to recognise as the father of a child a person who is not the biological father. That being so, the fact that the law of the United Kingdom does not allow special legal recognition of the relationship between X and Z does not amount to a failure to respect family life within the meaning of that provision.
It follows that there has been no violation of Article 8 of the Convention.
[?]
Comment
In this case, the Court discussed the meaning of ‘family life’. It stated that in order to determine whether a relationship could be said to amount to ‘family life’, a number of factors are relevant, including whether the couple lives together, the length of cohabitation and whether they have demonstrated commitment to each other by having children together or by any other means. The case concerned a union between a transsexual who had undergone gender reassignment and a woman who gave birth to a child conceived by artificial insemination using donor sperm. The transsexual had assumed the role of the male partner and acted as the child’s ‘father’ since the birth. The Court did not find a violation but found that de facto family ties linked these persons.
Although the state in principle may not interfere with an individual’s private right to develop relationships with other persons, the human rights supervisory organs have increasingly held that, once such relationships have been established, the state may then be required to ensure respect for them through appropriate legislation, regulations, or other means. In these cases, the states are required, in effect, to remove any state-imposed impediments to the enjoyment of the right to family life. In this respect, the European Court has upheld the principle that illegitimate children should not suffer on account of their birth. It has held that state non-interference in the de facto family life of an illegitimate child is not adequate to ensure respect for the child’s family life. The state must act affirmatively to ensure that a child enjoys the same legal status as any other child of the family. In Marckx v. Belgium (Application No.6833/74, Judgement of 13 June 1979, abstracted in the right to equality and non-discrimination,Concept and importance of the principle of non-discrimination) in which an unmarried mother and her child contested laws which required her to adopt her own child and which excluded even the adopted child from full legal rights in the family, the Court held that ‘when the state determines in its domestic legal system the regime applicable to certain family ties such as those between an unmarried mother and her child, it must act in a manner calculated to allow those concerned to lead a normal life.’ The Court reiterated this affirmative obligation in Johnston et al. v. Ireland (Application No. 9697/82, Judgement of 18 December 1986), in which the parents of a child could not marry because of the prohibition of divorce in Ireland. The Court held that although Article 8 did not require a state to implement divorce laws (in part on the basis that respect for privacy and de facto family life was sufficient protection for adults’ rights) it did require the state to place the child ‘legally and socially, in a position akin to that of a legitimate child [?] [and] the absence of an appropriate legal regime reflecting the [child’s] natural family ties amounts to a failure to respect her family life.’ In Airey v. Ireland (Application No. 6289/73, Judgement of 9 October 1979) the applicant, a woman who wished to obtain a Decree of Judicial Separation from her violent and abusive husband, argued that the Irish government’s refusal to make available legal aid to pursue such claims constituted a violation of her right to family life under Article 8. The Court agreed, noting the principle of a state’s positive obligations as established in the Marckx case:
[A]lthough the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life [?].
Effective respect for private or family life obliges Ireland to make [decrees of judicial separation] effectively accessible, when appropriate, to anyone who may wish to have recourse thereto. However, it was not effectively accessible to the applicant: not having been put in a position in which she could apply to the High Court [?] she was unable to seek recognition in law of her de facto separation from her husband. She has therefore been the victim of a violation of Article 8.
The de facto/de jure distinction took on added significance in Kroon et al. v. The Netherlands (Application No. 18535/91, Judgement of 27 October 1994), in which a married woman argued that the legal impossibility for her to deny her husband’s paternity of her child, thereby enabling the child’s biological father legally to acknowledge his paternity, violated their right to family life under Article 8. The Court agreed, citing as support for its holding the impossibility of tracing the (now former) husband’s whereabouts, the lack of interest of the natural parents in marrying one another and the related lack of interest in step-parent adoptions. In McMichael v. The United Kingdom (Application No. 16424/90, Judgement of 24 February 1995), the Court refused to distinguish between the two members of the applicant couple, where they were living as a couple with their child. In this case, a delay in the father’s registering his paternity prior to the commencement of compulsory care hearings was not considered to be a material fact negating the real existence of ‘family life’ in the sense of Article 8 of the Convention. At the same time, the Court held that because the father had never sought an order for parental rights he could not sustain a claim of discrimination against him in denying him access to the records in the case. In Keegan v. Ireland (Application No.16969/90, Judgement of 26 May 1994), the Court again found a violation of the right to family life of a natural father, where his child had been surrendered for adoption without his knowledge or consent.
Several cases have been brought to the European Commission regarding the right to terminate a pregnancy as protected by or in violation of the right to privacy and family. The cases of Paton v. The United Kingdom (Application No. 8416/78, decision of 13 May 1980), H. v. Norway (Application No. 17004/90, decision on admissibility of 19 May 1992, also discussed under the right to life,Euthanasia and Abortion ) and Boso v. Italy(Application No. 50490/99, decision on admissibility of 5 September 2002) involved fathers claiming that Article 8 granted them rights regarding foetuses where the women sought to terminate the pregnancies. These claims were rejected; in the admissibility decision in H. v. Norway the Commission established that:
[A]ny interpretation of the potential father’s right under these provisions in connection with an abortion which the mother intends to have performed on her, must first of all take into account her rights, she being the person primarily concerned by the pregnancy and its continuation or termination. The Commission therefore finds that any possible interference which might be assumed in the circumstances of the present case was justified as being necessary for the protection of the rights of another person.
The African Charter does not set out the right to privacy, but the family is protected. The African Commission has not dealt with many cases regarding this issue. In Constitutional Rights Project and Civil Liberties Organisation v. Nigeria several individuals that had been arbitrarily denied access to their families.
Constitutional Rights Project and Civil Liberties Organisation v. Nigeria
African Commission on Human and Peoples’ Rights
Communication Nos. 143/95, 150/9
Thirteenth Activity Report 1999-2000, Annex V
Keywords: family - habeas corpus - inhuman and degrading treatment - detention conditions
[?]
Summary of Facts:
[?]
4. Communication 150/96 complains that the State Security (Detention of Persons) Decree No. 2 of 1984, which enables a person to be detained for a reviewable period of three months if he endangers State security, violates Article 6 of the Charter. It also complains of the amended Decree of 1994 prohibiting the writ of habeas corpus.
5. The communication alleges that Mr. Abdul Oroh, Mr. Chima Ubani, Dr. Tunji Abajom, Chief Frank Kokori, Dr. Fred Eno, Honourable Wale Osun and Mr. Osagie Obayunwana were detained under this decree, without charge and also deprived of the right to bring habeas corpus actions. The communication alleges that they are detained in dirty, hidden, sometimes underground security cells; denied access to medical care, to their families and lawyers; and not permitted to have journals, newspapers and books. It is alleged that the detainees are sometimes subjected to torture and rigorous interrogations. The communication alleges that these conditions, combined with the courts’ inability to order the production of detained persons even on medical grounds, places the detainees’ lives in danger. The communication alleges that these circumstances constitute inhuman and degrading punishment or treatment.
[?]
6. The communication complains that the clauses ousting the jurisdiction of the courts to consider the validity of decrees or acts taken thereunder is a violation to the right to have one’s cause heard, protected by Article 7(1)(a) and 7(1)(d) of the Charter, and undermines the independence of the judiciary in contravention of Article 26.
7. The government has presented no response in respect of this communication.
Complaint:
8. The communications allege violation of Articles 5, 6, 7 and 26 of the Charter.
[?]
Merits
20. Both communications allege that the government has prohibited the issuance by any Court of the writ of habeas corpus or any prerogative order for the production of any person detained under Decree No. 2 of 1984. Decree No. 14 denies the right to those detained for acts “prejudicial to State security or the economic adversity of the nation”. A panel has the power to review the detentions but this is not a judicial body and its members are appointed by the President.
[?]
27. The importance of habeas corpus is demonstrated by the other dimensions of communication 150/96. The government argued that no one had actually been denied the right to habeas corpus under the Amended Decree. Communication 150/96 provides a list of such individuals who are detained without charges in very poor conditions, some incommunicado, and are unable to challenge their detention due to the suspension of this right. The government has however made no specific response.
28. First of all, in accordance with its well-established precedent [?] since the government has presented no defence or contrary evidence that the conditions of detention are acceptable, the Commission accepts the allegations that the conditions of detention are a violation of Article 5 of the Charter, which prohibits inhuman and degrading treatment. The detention of individuals without charge or trial is a clear violation of Articles 6 and 7(1)(a) and (d).
29. Furthermore, these individuals are being held incommunicado with no access to lawyers, doctors, friends or family. Preventing a detainee access to his lawyer clearly violates Article 7(1)(c) which provides for the “right to defence, including the right to be defended by a counsel of his choice.” It is also a violation of Article 18 to prevent a detainee from communicating with his family.
[?]
Comment
In this case the communication did not allege a violation of Article 18, but the Commission found that denying the detainees communication with their families constituted a violation of this article.
The right to access to one’s children is an important aspect of the right to respect for family life. Many complaints before the supervisory bodies deal with the relationship between parents and children. In Hendriks v. The Netherlands exclusive custody had been awarded to the mother who was unilaterally opposed to shared custody.
Hendriks v. The Netherlands
Human Rights Committee
Communication No. 201/1985
Views of 27 July 1988
Keywords: family - equality of rights and responsibilities of spouses at the dissolution of marriage - children’s rights - children, provisions for the necessary protection in the case of dissolution of marriage.
[?]
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication (initial letter of 30 December 1985 and subsequent letters of 23 February, 3 September and 15 November 1986 and 23 January 1988) is Wim Hendriks, a Netherlands citizen born in 1936, at present residing in the Federal Republic of Germany, where he works as an engineer. He submits the communication on his own behalf and on behalf of his son, Wim Hendriks, Jr., born in 1971 in the Federal Republic of Germany, at present residing in the Netherlands with his mother. The author invokes article 23, paragraph 4, of the Covenant [?].
He claims that this article has been violated by the Courts of the Netherlands which granted exclusive custody of Wim Hendriks, Jr. to the mother without ensuring the father’s right of access to the child. The author claims that his sons’ rights have been and are being violated by his subjection to one-sided custody; moreover, the author maintains that his rights as a father have been and are being violated and that he has been deprived of his responsibilities vis-a-vis his son without any reason other than the unilateral opposition of the mother.
2.1 The author married in 1959 and moved with his wife to the Federal Republic of Germany in 1962, where their son Wim was born in 1971. The marriage gradually broke up and in September 1973 the wife disappeared with the child and returned to the Netherlands. She instituted divorce proceedings and on 26 September 1974 the marriage was dissolved by decision of the Amsterdam District Court, without settling the questions of guardianship and visiting rights. Since the child was already with the mother, the father asked the court, in December 1974 and again in March 1975, to make a provisional visiting arrangement. In May 1975, the Court awarded custody to the mother, without, however, making provision for the father’s visiting rights; co-guardianship was awarded to the ex-wife’s father on the ground that Mr. Hendriks was living abroad. Early in 1978, the author requested the Child Care and Protection Board to intercede in establishing contact between his son and himself. Because of the mother’s refusal to co-operate, the Board failed in its efforts and advised the author to apply to the Juvenile Judge of the Amsterdam District Court. On 16 June 1978, the author requested the Juvenile Judge to establish a first contact between his son and himself and subsequently to make a visiting arrangement. On 20 December 1978, the Juvenile Judge, without finding any fault on the part of the father, dismissed the request on the grounds that the mother continued to oppose any such contact. [?].
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2.3 On 19 July 1979, the author appealed on points of law to the Supreme Court, arguing that the grounds for a rejection could only lie in exceptional circumstances relating to the person of that parent “as certain to be a danger to the health and moral welfare of the child or to lead to a serious disturbance of his mental balance, whereas in the present case it has not been stated or established that such exceptional circumstances exist or have existed”. On 15 February 1980, the Supreme Court upheld the Court of Appeal’s decision, noting that “the right of the parent who does not have or will not be awarded custody of the child to have access to that child must never be lost sight of but - as the Court rightly judged in this case - the interests of the child must ultimately be paramount”. The author therefore states that he has exhausted domestic remedies.
2.4 The author contends that the Netherlands courts did not correctly apply article 161, section 5, of the Netherlands Civil Code, which stipulates that “on demand or on application of both parents or of one of them, the judge may lay down an arrangement regarding contact between the child and the parent not granted custody of the child. If such arrangement has not been laid down in the divorce judgement ?. it may be laid down at a later date by the Juvenile Judge”. In view of the “inalienable” right of the child to have contact with both his parents, the author contends that the Netherlands courts must grant visiting rights to the non-custodial parent, unless exceptional circumstances exist. Since the Courts did not make an arrangement for mutual access in his case and no exceptional circumstances exist, it is argued that Netherlands legislation and practice do not effectively guarantee the equality of rights and responsibilities of spouses at the dissolution of marriage nor the protection of children, as required by article 23, paragraphs I and 4, of the Covenant. In particular, the author notes that the law does not give the courts any guidance as to which exceptional circumstances might serve as a justification for the denial of this fundamental right of mutual access. For the psychological balance and harmonious development of a child, contact with the parent who was not granted custody must be maintained, unless the parent in question constitutes a danger to the child. In the case of his son and himself, the author contends that, although the Netherlands courts ostensibly had the best interests of the child in mind, Wim junior has been denied the opportunity of seeing his father for 12 years on the insufficient ground that his mother opposed such contacts and that court-enforced visits could have caused psychological stress detrimental to the child. The author argues that every divorce entails psychological stress for all parties concerned and that the courts erred in determining the interests of the child in a static manner by focusing only on his protection from tension, which, moreover, would not be caused by the father’s misconduct but by the mother’s categorical opposition. The author concludes that the courts should have interpreted the child’s best interests in a dynamic manner by giving more weight to Wim junior’s need to maintain contact with his father, even if the re-establishment of the father-son relationship might initially have given rise to certain difficulties.
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2.6 The author therefore requested the Human Rights Committee to consider his communication since he had exhausted domestic remedies and the same matter was not pending before another procedure of international investigation or settlement.
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8.4 Inasmuch as the scope of a parent’s right of access to his/her child is concerned, the State party indicates that such a right is not an absolute one and may always be curtailed if this is in the overriding interests of the child. Curtailment can take the form of denying the right of access to the parent not awarded custody or restricting access arrangements, for example by limiting the amount of contact. The interests of the parent not awarded custody will only be overruled and access denied if that is considered to be in the child’s interests. However, if the parent who was awarded custody reacts to access arrangements in such a way as to cause considerable disturbance in the family in which the child is living, the parent who was not awarded custody may be denied access. Applications for access can thus be turned down, or access rights revoked, if this is deemed to be in the overriding should be taken to ensure equality of rights of spouses upon the dissolution of the marriage and that provision should be made for the necessary protection of any children. The words “the family” in article 23, paragraph 1, do not refer solely to the family home as it exists during the marriage. The idea of the family must necessarily embrace the relations between parents and child. Although divorce legally ends a marriage, it cannot dissolve the bond uniting father - or mother - and child~ this bond does not depend on the continuation of the parents’ marriage. It would seem that the priority given to the child’s interests is compatible with this rule.
10.4 The courts of the States parties are generally competent to evaluate the circumstances of individual cases. However, the Committee deems it necessary that the law should establish certain criteria so as to enable the courts to apply to the full the provisions of article 23 of the Covenant. It seems essential, barring exceptional circumstances, that these criteria should include the maintenance of personal relations and direct and regular contact between the child and both parents. The unilateral opposition of one of the parents, cannot, in the opinion of the Committee, be considered an exceptional circumstance.
10.5 In the case under consideration, the Committee notes that the Netherlands courts, as the Supreme Court had previously done, recognized the child’s right to permanent contact with each of his parents as well as the right of access of the non-custodial parent, but considered that these rights could not be exercised in the current case because of the child’s interests. This was the court’s appreciation in the light of all the circumstances, even though there was no finding of inappropriate behaviour on the part of the author.
11. As a result, the Committee cannot conclude that the State party has violated article 23, but draws its attention to the need to supplement the legislation, as stated in paragraph 10.4.
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Comment
In this case the Committee established that ‘family’ in Article 23 does not refer solely to the family home as it exists during the marriage but encompasses relations between parents and child. Divorce cannot dissolve the bond uniting father - or mother - and child, as this bond does not depend on the continuation of the parents’ marriage.
It is worth noting that Article 5 of Protocol No. 7 to the European Convention sets out equality of rights and responsibilities of spouses, both during marriage and after its dissolution. A state must always make its decisions according to the best interests of the child standard, under either case-law or the Convention provisions. Although the Court considers that states may determine which parent should have custody of a child, it also maintains that the other parent has a right of access in order to preserve the right to family life under Article 8. The Court confirmed this position in Hokkanen v. Finland (Application No. 19823/92, Judgement of 23 September 1994) in which a father contested custody and access issues with the child’s grandparents. On the death of the mother, the father had surrendered their child to the care of the grandparents. Although he had a right of custody and access, the Finnish authorities did not enforce these rights: he ultimately lost custody to the grandparents. The European Court found a violation of Article 8 on the access issue but held that the transfer of custody fell within the state’s margin of appreciation. In K. A. v. Finland (Application No. 27751/95, Judgement of 14 January 2003) the European Court concluded that there had been a violation of Article 8 as a result of the state’s failure to take sufficient steps to reunite the applicant and his children. (See also Venema v. The Netherlands , Application No. 35731/97, Judgement of 17 December 2002). The case of Hansen v. Turkey is demonstrative; here the European Court found that Turkey had violated the right to respect for family life by failing to ensure the applicant’s rights of access to her two daughters.
Hansen v. Turkey
European Court of Human Rights
Application No. 36141/97
Judgement of 23 September 2003
Keywords: family - children, access to - private life - positive obligations - proportionality
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THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
145. The applicant was born in 1959 and lives in Iceland. She is the mother of two daughters, V.A, who was born in 1981, and A.A, who was born in 1982. At the time of their births the applicant was living in Reykjavik with Mr Halil Al, a Turkish citizen. The children were born out of wedlock.
146. On 13 April 1984 the couple married in Iceland. Halil Al obtained Icelandic citizenship three years later.
147. The applicant and Halil Al separated in November 1989 and Halil Al moved from the house they shared in February 1990.
148. In June 1990 Halil Al went to Turkey with the two girls for a holiday. The applicant gave her consent to allow her daughters to accompany their father to Turkey. In August 1990 the applicant received a telephone call from Halil Al, who told her that her daughters would not be returning to Iceland. From that point on Halil Al refused to communicate with the applicant. Over the following months the applicant received no information about the children or their condition in Turkey.
A. Divorce and custody proceedings in Iceland
149. The applicant applied to the Icelandic authorities for a decree of divorce and custody of her two daughters.
150. On 11 January 1991 the Ministry of Justice issued a separation licence and provisionally granted custody of the children to the applicant.
151. On 10 April 1992 the Ministry of Justice decided that the applicant should be granted custody of the children in view of the fact that they had been living with their mother since their parents separated and that Iceland had always been their home. The Ministry based its decision on the opinion of the Reykjavik Child Welfare Committee, which made an overall assessment of the applicant’s and Halil Al’s financial situation and living conditions.
152. On the same date the Ministry of Justice issued a divorce decree, under which Halil Al was to pay the applicant maintenance for each child until the age of eighteen and the children were to have access to their father under arrangements to be determined by mutual agreement between the parents.
B. Divorce and custody proceedings in Turkey
153. On 25 October 1991 the applicant brought an action before the Bakirköy Civil Court of General Jurisdiction (Asliye Hukuk Mahkemesi) in Istanbul in which she sought a divorce and custody of her daughters.
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154. On 12 November 1992 the Bakirköy Civil Court of General Jurisdiction declared the applicant and Halil Al divorced and granted custody of the children to the father. It considered in accordance with Law no. 2675 that the applicable law in the case was Turkish law.
155. The Civil Court considered that the children had expressed the wish to stay with their father, who tended to their emotional needs and gave them a decent education. The children had adjusted to their life in Istanbul and to their father’s environment. If they were removed from their surroundings, they would suffer psychologically and emotionally. It was therefore in the children’s best interest to remain with their father, who had sufficient income to support them and pay for their education. The Civil Court also granted the applicant visiting rights allowing her to see the children every July for thirty days.
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156. The case was remitted to the Bakirköy Civil Court of General Jurisdiction.
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157. At a hearing on 20 April 1995 the applicant withdrew her divorce petition and asked the Civil Court to rule on the issue of custody.
158. On 28 November 1995 the Court of Cassation quashed the decision of 20 April 1995. In the opinion of the Court of Cassation, the first instance court should have decided which parent would be granted the custody of the children pursuant to the provisions of Law no. 2675 and Article 312 of Civil Code. It was necessary to determine who would have the parental authority over the children because they had been registered as “children born out of wedlock” (gayri sahih nesepli) in the Turkish Register of Births, Marriages and Deaths.
159. The case was once again remitted to the Bakirköy Civil Court of General Jurisdiction.
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160. Having regard to the statements of the children and other evidence before it, the Civil Court decided to award custody of the children to their father and granted the applicant visiting rights. It reached the following conclusions:
161. During the proceedings the children had stated on several occasions that they had been living with their father for six years and were happy being with him. They did not want to see their mother and feared that she might kidnap them. The case-file showed that the children had no psychological, mental or physical problems. Their father had given them sufficient financial support, they had adjusted to their father’s environment and were happy to live with him. In the light of those facts the children’s interest would best be served by their remaining with their father. However, it was also necessary to satisfy the children’s maternal needs. Therefore, having regard to the distance between Turkey and Iceland and the children’s summer holidays, the applicant should be granted visiting rights every July and August for sixty days.
162. On 18 November 1996 the Court of Cassation upheld that decision.
163. The Court of Cassation rejected an application by the applicant for rectification of the judgment on 31 March 1997.
164. The applicant brought civil proceedings against Halil Al claiming that he had abused his authority as the children’s guardian (velayetin nezi davas?).
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C. Proceedings concerning the enforcement of access
165. On 12 March 1992 the Bakirköy Civil Court of General Jurisdiction provisionally granted the applicant access to her children on the first and third Saturday of every month. However, she was able to see her children on only two occasions. Her subsequent attempts to have access were unsuccessful.
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166. The applicant filed several complaints. The Bakirköy Public Prosecutor instituted criminal proceedings against Halil Al on the ground that he had failed to comply with court orders.
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THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
167. The applicant complained that the Turkish authorities had failed to enforce effectively her right of access to her children in accordance with their positive obligation under Article 8 of the Convention [?].
A. The parties’ submissions
1. The applicant
168. The applicant complained that the Turkish authorities had failed effectively to enforce her access rights to her children despite numerous attempts she had made to see them between 1992 and 1998. She had travelled to Turkey from Iceland more than a hundred times in six years with the aim of seeing her daughters. However, her efforts had remained unsuccessful because her former husband had consistently refused to comply with the access arrangements. She pointed out that the Turkish authorities had failed to take effective steps to locate her daughters, who had been hidden by their father prior to each visit by the enforcement officers.
The applicant maintained that eighteen sets of criminal proceedings had been instituted against her former husband on account of his failure to comply with the court orders. However, he had been let off lightly, only having to pay small fines and escaping more severe punishment.
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B. The Court’s assessment
169. The Court notes, firstly, that the applicant’s complaints concerned her alleged inability to have access to her two daughters, V.A and A.A, from 1990 onwards. It is not disputed that these matters concern “family life” within the meaning of Article 8 of the Convention.
170. That being so, it must be determined whether there has been a failure to respect the applicant’s family life. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There are in addition positive obligations inherent in an effective “respect” for family life [?]. In this context, the Court has repeatedly held that Article 8 includes a right for parents to have measures taken that will permit them to be reunited with their children and an obligation on the national authorities to take such action [?].
171. However, the national authorities’ obligation to take measures to facilitate reunion is not absolute, since the reunion of a parent with children who have lived for some time with the other parent may not be able to take place immediately and may require preparatory measures to be taken. The nature and extent of such preparation will depend on the circumstances of each case, but the understanding and co-operation of all concerned are always an important ingredient. Whilst national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests as well as the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Article 8 of the Convention. Where contacts with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them [?].
172. The Court, therefore, has to ascertain whether the national authorities took all such necessary steps to facilitate execution as could reasonably be demanded in the special circumstances of the case [?] and whether the national authorities struck a fair balance between the interests of all persons concerned and the general interest in ensuring respect for the rule of law [?].
173. In this connection, the Court also reiterates that, in a case like the present one, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the granting of parental responsibility, including execution of the decision delivered at the end of them, require urgent handling as the passage of time can have irremediable consequences for relations between the children and the parent who does not live with them [?].
174. The Court observes that the applicant lodged her request for divorce and custody of her children on 25 October 1991. The proceedings were concluded six years and five months later on 31 March 1997. [?].
175. Between March 1992 and August 1998 the applicant was able to see her children on only four occasions although the enforcement officers and the applicant made more than fifty visits to the children’s home [?].
176. In the course of those proceedings the children were exposed to immense pressure as the custody and divorce proceedings had attracted media and public attention. Even in such difficult circumstances, however, the authorities did not take any measures to enable the applicant to enjoy access while the lengthy proceedings were pending. In particular, they failed to seek the advice of social services or the assistance of psychologists or child psychiatrists in order to facilitate the applicant’s reunion with her daughters and to create a more cooperative atmosphere between the applicant and her former husband [?].
177. In this connection, the Court notes that the children had expressed a reluctance to see their mother on several occasions, both during the divorce and custody proceedings and during the enforcement proceedings. The Government pointed out that the national authorities were not responsible for the children’s refusal to see their mother and the father’s non-compliance with the orders of access. Although it is true that there were occasions when the children had firmly refused to see their mother - notably at the meeting in Divrii - the Court is of the opinion that the children were never given any real opportunity to develop a relationship with her in a calm environment so that they could freely express their feelings for her without any outside pressure.
178. As to the handling of the enforcement procedures by the Turkish authorities, the Court notes that on each scheduled visit the applicant’s former husband arranged to be absent with the children when the enforcement officers arrived. However, the authorities did not take any steps to locate the children with a view to facilitating contact with the applicant. In the face of Halil Al’s consistent refusal to comply with the access arrangements, the authorities should have taken measures to allow the applicant access, including realistic coercive measures against her former husband of a type which were likely to lead to compliance.
179. Although measures against children obliging them to re-unite with one or other parent are not desirable in this sensitive area, such action must not be ruled out in the event of non-compliance or unlawful behaviour by the parent with whom the children live [?].
180. The Court does not agree with the Government’s submission that the Turkish authorities did everything that could reasonably be expected of them to enforce the applicant’s right of access to her children. It finds that the fines imposed on the applicant’s former husband were neither effective nor adequate. As to the Government’s suggestion that the applicant could have asked the enforcement officers to enter Halil Al’s home by force, the Court finds that, even if this was so, it does not absolve the authorities from their obligations in the matter of enforcement, since it is they who exercise public authority [?].
181. Having regard to the foregoing, the Court concludes that the Turkish authorities failed to make adequate and effective efforts to enforce the applicant’s access rights to her children and thereby violated her right to respect for her family life, as guaranteed by Article 8.
182. It follows that there has been a violation of Article 8 of the Convention.
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Comment
Here the Court held that the Turkish Government had failed to take sufficient steps to maintain the contact between the applicant and her daughters. The father had been awarded custody and he obstructed the mother’s access to the children. She attempted to see her children on a number of occasions with enforcement officers, to no avail. The Court found that the state had positive obligations to take reasonable steps to facilitate the contact between parents and children, that it should, inter alia, have taken realistic coercive measures against the father. The Court ruled that the attendance of enforcement officers and fining the father was not satisfactory to ensure contact between the applicant and her children. This implies that the state has to give considerable support to parents who are not able to have ‘Court ordered contact’ with their children. (See also Hokkanen v. Finland, Application No. 19823/92, Judgement of 23 September 1994 and Ignaccolo-Zenide v. Romania , Application No. 31679/96, Judgement of 25 January 2000).
A similar case was brought to the Human Rights Committee.
Fei v. Colombia
Human Rights Committee
Communication No. 514/1992
Views of 4 April 1995
Keywords: adoption - equal treatment - fair hearing - exhaustion of domestic remedies - reasonable time - children’s rights - family life, respect for
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The facts as submitted by the author
2.1 Mrs. Fei married Jaime Ospina Sardi in 1976; in 1977, rifts between the spouses began to emerge, and in 1981 Mrs. Fei left the home [?].
2.2 A Colombian court order dating from 19 May 1982 established a separation and custody arrangement, but divorce proceedings subsequently were also instituted by the author before a Paris tribunal, with the consent of her ex-husband.
2.3 Under the Colombian court order of May 1982, the custody of the children was granted provisionally to the father, with the proviso that custody would go to the mother if the father remarried or cohabited with another woman. It further established joint parental custody and provided for generous visiting rights. [?].
2.4 On 26 September 1985, Mrs. Fei’s children, during a visit to her mother, were allegedly kidnapped by the father, with the help of three men said to be employees of the Colombian Embassy in Paris, when the author was leaving her Paris apartment. Between September 1985 and September 1988, the author did not have any contact with her children and knew nothing of their whereabouts [?].
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2.7 In May 1989, Mr. Ospina Sardi broke off the negotiations with the author without providing an explanation; only in November 1989 were the Italian authorities informed, upon request, of the “final divorce judgement” of 13 March 1989. Mr. Ospina Sardi refused to comply with the terms of the judgement. On 21 June 1991, Mr. Ospina Sardi filed a request for the revision of the divorce judgement and of the visiting rights granted to the author [?]. Mr. Ospina Sardi also requested that the author be refused permission to see the children in Colombia, and that the children should not be allowed to visit their mother in Italy.
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2.9 The author notes that, during her trips to Colombia in May and June 1992, she could only see her children very briefly and under conditions deemed unacceptable [?]. Mrs. Fei has now herself instituted criminal proceedings against Mr. Ospina Sardi, for non-compliance with the divorce judgement.
2.10 In 1992 and 1993, the Colombian courts took further action in respect of Mr. Ospina Sardi’s request for a revision of parental custody and visiting rights, as well as in respect of complaints filed on behalf of the author in the Supreme Court of Colombia. On 24 November 1992, the Family Law Division (Sala de Familia) of the Superior Court of Bogotá (Tribunal Superior del Distrito Judicial) modified the visiting rights regime in the sense that all contacts between the children and the author outside Colombia were suspended; at the same time, the entire visiting rights regime was pending for review before Family Court No. 19 of Bogotá.
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2.13 On 28 July 1993, finally, the Constitutional Court partially confirmed and partially modified the judgement of the Supreme Court of 9 February 1993. The judgement is critical of the author’s attitude vis-à-vis her children between 1985 and 1989, as it assumes that the author deliberately neglected contact with them between those dates. It denies the author any possibility of a transfer of custody, and appears to hold that the judgement of Family Court No. 19 is final [?]. This, according to counsel, means that the author must start all over again if she endeavours to obtain custody of the children. Finally, the judgement admonishes the author to assume her duties with more responsibility in the future [?].
2.14 In December 1993, the author’s children, after presumed pressure from their father, filed proceedings pursuant to article 86 of the Colombian Constitution (acción de tutela; see para. 4.5 below) against their mother. The case was placed before the Superior Tribunal in Bogotá (Tribunal Superior del Distrito Judicial de Santa Fé de Bogotá). Mrs. Fei claims that she was never officially notified of this action. [?].
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The complaint
3.1 The author alleges a violation of article 14, paragraph 1, of the Covenant, in that she was denied equality before the Colombian tribunals. She further contends that the courts have not been impartial in their approach of the case. In this context, it is submitted that just prior to the release of the judgement of the Constitutional Court, press articles carried excerpts of a judgement and statements of a judge on the Court that implied that the Constitutional Court would rule in her favour; inexplicably, the judgement released shortly thereafter went, at least partially, against her.
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3.3 According to the author, the facts as stated above amount to a violation of article 17, on account of the arbitrary and unlawful interferences in her private life or the interference in her correspondence with the children.
3.4 The author complains that Colombia has violated her and her children’s rights under article 23, paragraph 4, of the Covenant. In particular, no provision of the protection of the children was made, as required under article 23, paragraph 4 in fine . In this context, the author concedes that her children have suffered through the high exposure that the case has had in the media, both in Colombia and in Italy. As a result, they have become withdrawn. [?].
3.5 The author alleges a violation of article 24, in relation to the children’s presumed right to acquire Italian nationality, and their right to equal access to both parents.
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3.7 The author submits that whereas some form of domestic remedies may still be available, the pursuit of domestic remedies has already been unduly prolonged within the meaning of article 5, paragraph 2(b), especially if the very nature of the dispute, custody of and access to minor children, is taken into consideration.
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Examination of the merits
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8.2 The Committee has taken note of the State party’s argument that the Colombian judicial authorities acted independently and impartially in the author’s case, free from external pressure, that the principle of equality of arms was respected, and that there were no undue delays in the proceedings concerning custody of the author’s daughters and visiting rights. The author has refuted these contentions.
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8.5 The Committee has further noted that the State party’s authorities have failed to secure the author’s ex-husband’s compliance with court orders granting the author access to her children, such as the court order of May 1982 or the judgement of the First Circuit Court of Bogotá of 13 March 1989. Complaints from the author about the non-enforcement of such orders apparently continue to be investigated, more than 30 months after they were filed, or remain in abeyance; this is another element indicating that the requirement of equality of arms and of expeditious procedure has not been met.
8.6 Finally, it is noteworthy that in the proceedings under article 86 of the Colombian Constitution instituted on behalf of the author’s daughters in December 1993, the hearing took place, and judgement was given, on 16 December 1993, that is, before the expiration of the deadline for the submission of the author’s defence statement. The State party has failed to address this point, and the author’s version is thus uncontested. In the Committee’s opinion, the impossibility for Mrs. Fei to present her arguments before judgement was given was incompatible with the principle of adversary proceedings, and thus contrary to article 14, paragraph 1, of the Covenant.
8.7 The Committee has noted and accepts the State party’s argument that in proceedings which are initiated by the children of a divorced parent, the interests and the welfare of the children are given priority. The Committee does not wish to assert that it is in a better position than the domestic courts to assess these interests. The Committee recalls, however, that when such matters are before a local court that is assessing these matters, the court must respect all the guarantees of fair trial.
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8.9 As to the alleged violation of article 23, paragraph 4, the Committee recalls that this provision grants, barring exceptional circumstances, a right to regular contact between children and both of their parents upon dissolution of a marriage. The unilateral opposition of one parent generally does not constitute such an exceptional circumstance. [?].
8.10 In the present case, it was the author’s ex-husband who sought to prevent the author from maintaining regular contact with her daughters, in spite of court decisions granting the author such access. On the basis of the material made available to the Committee, the father’s refusal apparently was justified as being “in the best interest” of the children. The Committee cannot share this assessment. No special circumstances have been adduced that would have justified the restrictions on the author’s contacts with her children. Rather, it appears that the author’s ex-husband sought to stifle, by all means at his disposal, the author’s access to the girls, or to alienate them from her. The severe restrictions imposed by Mrs. Fei’s ex-husband on Mrs. Fei’s rare meetings with her daughters support this conclusion. Her attempts to initiate criminal proceedings against her ex-husband for non-compliance with the court order granting her visiting rights were frustrated by delay and inaction on the part of the prosecutor’s office. In the circumstances, it was not reasonable to expect her to pursue any remedy that may have been available under the Code of Civil Procedure. In the Committee’s opinion, in the absence of special circumstances, none of which are discernible in the present case, it cannot be deemed to be in the “best interest” of children virtually to eliminate one parent’s access to them. That Mrs. Fei has, since 1992-1993, reduced her attempts to vindicate her right of access cannot, in the Committee’s opinion, be held against her. In all the circumstances of the case, the Committee concludes that there has been a violation of article 23, paragraph 4. Furthermore, the failure of the prosecutor’s office to ensure the right to permanent contact between the author and her daughters also has entailed a violation of article 17, paragraph 1, of the Covenant.
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Clearly, the state has positive obligations in regard to ensuring access to children, but in practice, however, the implementation of this principle can be difficult, as the human rights instruments are not legally enforceable against private individuals. Because the state may determine custody and access issues at the time of family breakdown, but cannot exercise any control over how the private individuals conduct themselves afterwards, a non-custodial parent may lack effective redress against any obstruction by the custodial parent of the right of access. For example, a custodial parent may poison a child’s mind against the other parent and because it is not a state action, that parent can do little about it under a human rights convention. The European Commission, for instance, has confirmed this view by holding that although blame may be assignable to a given party; such a finding is not relevant to the central issue: the victimising of the child as the centre of the conflict between the parents. The European Court and Commission have consistently held that because it is not in the child’s best interests to be in such a stressful position, the state may reasonably prohibit the non-custodial parent from exercising access rights in such circumstances. For example, in the Hendriks case (above), the Commission held that such a state action was justifiable under the ‘protection of health’ of Article 8(2), the concept of health encompassing psychological as well as physical aspects of well-being. The European Commission and Court have also applied this rationale in instances where state actions, not private actions, are at issue, for example where the state has acted to break up the family.
Many cases before the supervisory mechanisms deal with situation where children have been taken into the care of the state or adopted without the consent of the natural parents. As the personal relationships between children and parents are fundamental to the enjoyment of family life, official measures that separate them from each other must be carefully weighed and a fair balance must be struck between the best interest of the child and that of the parent. In the case of Fretté v. France (Application No. 36515/97, Judgement of 26 February 2002), the European Court established that the Convention did not guarantee the right to adopt per se and that the right to be able to adopt asserted by the applicant under French domestic law was circumscribed by the interests of adoptable children, without his personal choices being called into question, and that refusing the applicant, a homosexual man, the right to adopt did not violate Article 8. In a series of cases against the United Kingdom, however, the Court found violations of Article 8 principally on the grounds that the state had excluded the parents from participation in the proceedings through which the decisions had been taken to place or keep the child outside the family environment and in some instances to deny to the parents the right of access (see O. v. The United Kingdom , Application No. 9276/81, Judgement of 8 July 1987,H. v. The United Kingdom , Application No. 9580/81, Judgement of 8 July 1987, W. v. The United Kingdom , United Kingdom, Application No. 9749/82, Judgement of 8 July 1987, B. v. The United Kingdom , Application No. 9840/82, Judgement of 8 July 1987 and R. v. The United Kingdom , Application No. 10496/83, Judgement of 8 July 1987). In Olsson v. Sweden (Application No. 10465/83, Judgement of 24 March 1988), the Court found that the parents had enjoyed sufficient procedural protection throughout the decision-making processes. It did however, find a violation of Article 8 in the state’s placing the three children in separate foster homes and at a long distance from each other and from their parents, bearing in mind that the state did not intend to remove the children permanently from their parents. The Court found that the state’s action thus ran counter to the aim of reuniting the family, and was not ‘necessary in a democratic society.’ In Eriksson v. Sweden (Application No. 11373/85, Judgement of 22 June 1989), the Court held that the Swedish Government’s ‘severe and lasting restrictions on access combined with [a six-year] prohibition on removal [from the child’s foster home] are not proportionate to the legitimate aim pursued’. (For more cases regarding care and adoption see, for instance, the European cases B. v. The United Kingdom, Application No. 9840/82, Judgement of 8 July 1987, X v. The United Kingdom,Application No. 7215/75, Judgement of 5 November 1981 and Görgülü v. Germany , Application No. 74969/01, Judgement 26 February 2004).
Another aspect of the respect for family life is related to deportation and immigration issues. In Berrehab v. The Netherlands (Application No. 10730/84, Judgement of 21 June 1988), a Moroccan had divorced his Dutch wife but maintained a close relationship with his daughter; the European Court ruled that his deportation would violate the right to respect for family life. In Gul v. Switzerland (Application No. 23218/94, Judgement of 19 February 1996) the Court accepted that the right of a state to control the entry of non-nationals into its territory continues to be a significant limitation on the possibility of achieving family reunification and did not find a violation of Article 8 where a child was refused permission to join its parents in Switzerland where they had temporary residence status (see also Nsona v. The Netherlands , Application No. 23366/94, Judgement of 28 November 1996, which dealt with,‘inter alia, the refusal by the Netherlands authorities to grant one of the applicants, a nine-year-old girl, access to its territory and Ahmut v. The Netherlands , Application No. 21702/93, Judgement of 28 November 1996). In Yilmaz v. Germany (Application No 52853/99, Judgement of 17 April 2003), the applicant was a criminal legal alien resident who alleged that his deportation would violate the right to family life as his family lived in Germany. The Court found that the deportation was legitimate but found the fact that his exclusion from Germany was for an indefinite period amounted to a disproportionate interference in view of his family situation and the fact that he had previously held unlimited permission to reside there. The Court accordingly ruled that there had been a violation of Article 8. In Jakupovic v. Austria (Application No. 36757/97, Judgement of 6 February 2003), the Court found that the expulsion of a young foreigner whose family resided in Austria violated Article 8, as his criminal record was not sufficiently extensive to warrant the interference. In Slivenko v. Latvia (Application No. 48321/99, Judgement of 9 October 2003) the applicants were former Latvian residents of Russian origin who were required to leave Latvia in accordance with the withdrawal of Russian troops. They complained that their deportation constituted interference under Article 8. The Court considered that the deportation was in accordance with the law, carried out in order to protect the interests of national security, but found that in the individual circumstances of the case the removal order could not be regarded as having been necessary in a democratic society.
Several cases have been brought to the European Court dealing with the question of deportation of foreigners on the grounds of ‘public safety or the prevention of crime’. In Moustaquim v. Belgium (Application No. 12313/86, Judgement of 18 February 1991) the applicant, a Moroccan citizen, arrived in Belgium at a very young age and only spoke a few words of Arabic. A Royal Decree, which referred to numerous offences committed by the applicant whilst he was a minor, for criminal-law purposes, directed that he be deported from Belgium on the grounds that he constituted a real danger to society and had seriously undermined public order. According to the Court there had been an interference with the right to respect for family life. At the time of the deportation order, all the applicant’s close relatives were living in Belgium. One of the older children in his family had acquired Belgian nationality and the three youngest had been born in Belgium. The applicant had arrived in Belgium at a very early age and had lived there for about twenty years with his family or not far away from them. His family life had thus been seriously disrupted and the means employed had been disproportionate to the legitimate aim pursued; there had accordingly been a violation of the applicant’s right to respect for his family life (see also C. v. Belgium , Application No. 21794/93, Judgement of 7 August 1996, Al-Nashif v. Bulgaria , Application No. 50963/99, Judgement of 20 June 2002, Boujlifa v. France , Application No. 25404/94, Judgement of 21 October 1997, Benhebba v. France , Application No. 53441/99, Judgement of 10 July 2003, Mokrani v. France , Application No. 52206/99, Judgement of 15 July 2003 and Boultif v. Switzerland , Application No. 54273/00, Judgement of 2 August 2001). In Beldjoudi v. France (Application No. 12083/86, Judgement of 26 March 1992) the applicant, who had a much worse criminal record than Moustaquim, and his wife, alleged that his deportation from France would violate their right to respect for family life. The applicant was to be deported on the ground that his presence would undermine public order. The applicant had spent his whole life (over forty years) in France, had been educated in French and appeared not to know Arabic and was married to a French woman. He appeared not to have any links with Algeria apart from his nationality. The Court found that enforcement of the deportation order would constitute an interference with the exercise of the applicant’s and his wife’s right to respect for their family life as,inter alia, Mrs Beldjoudi had been born in France and was of French nationality. If she were to follow her husband, she would have to settle abroad, presumably in Algeria, a state whose language she did not seem to know. To be uprooted like this could cause her great difficulty in adapting, and there might be real practical or legal obstacles. The decision to deport the applicant, if put into effect, would therefore not be proportionate to the legitimate aim pursued, and would thus violate Article 8. In another case against France,Nasri v. France (Application No.19465/92, Judgement of 13 July 1995), the Court found a violation of Article 8 where the authorities wished to deport an Algerian deaf-mute who had come to France with his family at the age of four. The Court held that the seriousness of the crimes for which he had been convicted, amongst them a rape for which the sentence had been served and the offence not repeated in the intervening twelve years, were not sufficient grounds forcibly to separate a long term resident suffering from serious disabilities from his closest family members.
The Human Rights Committee has dealt with many cases related to family life and deportation and expulsion. In the admissibility decision Toala et al. v. New Zealand (Communication No. 675/1995, Views of 2 November 2000) a case where the applicant’s deportation from New Zealand could raise issues under, inter alia, Articles 17 and 23, the majority found the communication inadmissible. Four members of the Committee gave an individual opinion:
We note that Mr. and Mrs. Toala have no children in Western Samoa who can take care of them and that the children in New Zealand are the only care providers. The authors have lived in New Zealand since 1986 and have developed effective family ties there. The refusal by the State party to regularize the stay of all three authors is mainly based on Mr. Toala’s criminal conviction in 1980. The material before the Committee does not show that adequate weight was given to the family life of the authors. We are of the view that in the particular circumstances of the case, to refuse to allow the authors to reside in New Zealand with the adult/children of Mr. and Mrs. Toala who are their only care providers is disproportionate and would, hence constitute arbitrary interference with their family. Consequently we find a violation of articles 17 and 23 in regard to Mr. and Mrs. Toala and their son Eka.
A well-known case of the Human Rights Committee deals with the expulsion of illegal aliens who had lived in Australia for many years and whose child was an Australian citizen.
Winata and Li v. Australia
Human Rights Committee
Application No. 930/2000
Views of 26 July 2001
Keywords: respect for his family life - family - expulsion of the parents of child
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Views under article 5, paragraph 4, of the Optional Protocol
1. The authors of the communication, dated 4 May 2000, are Hendrik Winata, born 9 November 1954 and So Lan Li, born 8 December 1957, both formerly Indonesian nationals but currently stateless, also writing on behalf of their son Barry Winata, born on 2 June 1988 and an Australian national. The authors complain that the proposed removal of the parents from Australia to Indonesia would constitute a violation of articles 17, 23, paragraph 1, and 24, paragraph 1, of the Covenant by the State party. They are represented by counsel.
The facts as presented
2.1 On 24 August 1985 and 6 February 1987, Mr. Winata and Ms. Li arrived in Australia on a visitor’s visa and a student visa respectively. In each case, after expiry of the relevant visas on 9 September 1985 and 30 June 1988 respectively they remained unlawfully in Australia. In Australia Mr. Winata and Ms. Li met and commenced a de facto relationship akin to marriage, and have a thirteen year old son, Barry, born in Australia on 2 June 1988.
2.2 On 2 June 1998, by virtue of his birth in that country and residing there for 10 years, Barry acquired Australian citizenship. On 3 June 1998, Mr. Winata and Ms. Li lodged combined applications for a protection visa [?]. On 26 June 1998, the Minister’s delegate refused to grant a protection visa.
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2.4 On 25 January 2000, the Refugee Review Tribunal (RRT) affirmed DIMA’s decision to refuse a protection visa. [?].
2.5 On the basis of legal advice that any application for judicial review of the RRT’s decision had no prospects of success [?].
2.6 On 20 March 2000, (3) Mr. Winata and Ms. Li applied to the Minister for Immigration and Multicultural Affairs, requesting the exercise in their favour on compelling and compassionate grounds of his non-enforceable discretion. (4) The application, relying inter alia on articles 17 and 23 of the Covenant, cited “strong compassionate circumstances such that failure to recognize them would result in irreparable harm and continuing hardship to an Australian family”. The application was accompanied by a two and a half page psychiatric report on the authors and possible effects of a removal to Indonesia. (5) On 6 May 2000, the Minister decided against exercising his discretionary power. (6)
The complaint
3.1 The authors allege that their removal to Indonesia would violate rights of all three alleged victims under articles 17, 23, paragraph 1, and 24, paragraph 1.
3.2 As to the protection of unlawful or arbitrary interference with family life, protected under article 17, the authors argue that de facto relationships are recognized under Australian law, including in migration regulations, and that there should be no doubt that their relationship would be so recognized by the Australian courts. Their relationship with Barry would also be recognized as a “family” by Australia. They contend that it is clear from the psychiatric report that there is strong and effective family life.
3.3 The authors contend that a removal which separates parents from a dependent child, as is claimed could occur in this case if Barry were to remain in Australia, amounts to an “interference” with that family unit. While conceding that the removal of Mr. Winata and Ms. Li is lawful under domestic law by virtue of the Migration Act, the authors cite the Committee’s General Comment 16 to the effect that any interference must also be in accordance with the provisions, aims and objectives of the Covenant and be reasonable in the particular circumstances.
3.4 The authors claim that if they are to be removed, the only way to avoid their separation from Barry is for him to leave with them and relocate to Indonesia. They claim however that Barry is fully integrated into Australian society, speaks neither Indonesian nor Chinese, and has no cultural ties to Indonesia since he has always lived in Australia. Barry is described by the psychologist’s report as “an Inner Western Sydney multicultural Chinese Australian boy, with all the best characteristics of that culture and subculture [who] would be completely at sea and at considerable risk if thrust into Indonesia”. Alternatively, the authors contend it would be unconscionable and very damaging to break up the family unit and set Barry adrift in Australia them if he was to be left there while they returned to Indonesia. Either way, say the authors, the removal would be arbitrary and unreasonable.
3.5 In coming to this conclusion, the authors refer to the jurisprudence of the European Court of Human Rights, which in its interpretation of the analogous article 8 of the European Convention has been generally restrictive towards those seeking entry into a State for purposes of “family creation”, while adopting a more liberal approach to existing families already present in the State. The authors urge that a similar approach be taken by the Committee, while arguing that the right in article 17 of the Covenant is stronger than article 8 of the European Convention in that it is not expressed as subject to any conditions, and that therefore the individual’s right to family life will be paramount rather than balanced against any State right to interfere with the family.
3.6 As to articles 23 and 24, the authors do not develop any specific argumentation other than to observe that article 23 is expressed in stronger terms than article 12 of the European Convention, and that article 24 specifically addresses the protection of the rights of the child as such or as a member of a family.
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Issues and proceedings before the Committee
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6.3 As to the State party’s contention that the claims are in essence claims to residence by unlawfully present aliens and accordingly incompatible with the Covenant, the Committee notes that the authors do not claim merely that they have a right of residence in Australia, but that by forcing them to leave the State party would be arbitrarily interfering with their family life. While aliens may not, as such, have the right to reside in the territory of a State party, States parties are obliged to respect and ensure all their rights under the Covenant. The claim that the State party’s actions would interfere arbitrarily with the authors’ family life relates to an alleged violation of a right which is guaranteed under the Covenant to all persons. The authors have substantiated this claim sufficiently for the purposes of admissibility and it should be examined on the merits.
6.4 As to the State party’s claims that the alleged violations of article 23, paragraph 1, and article 24, paragraph 1, have not been substantiated, the Committee considers that the facts and arguments presented raise cross-cutting issues between all three provisions of the Covenant. The Committee considers it helpful to consider these overlapping provisions in conjunction with each other at the merits stage. It finds the complaints under these heads therefore substantiated for purposes of admissibility.
6.5 Accordingly, the Committee finds the communication admissible as pleaded and proceeds without delay to a consideration of its merits. The Committee has considered the communication in the light of all the information made available to it by the parties, as required by article 5, paragraph 1, of the Optional Protocol.
7.1 As to the claim of violation of article 17, the Committee notes the State party’s arguments that there is no “interference”, as the decision of whether Barry will accompany his parents to Indonesia or remain in Australia, occasioning in the latter case a physical separation, is purely an issue for the family and is not compelled by the State’s actions. The Committee notes that there may indeed be cases in which a State party’s refusal to allow one member of a family to remain in its territory would involve interference in that person’s family life. However, the mere fact that one member of a family is entitled to remain in the territory of a State party does not necessarily mean that requiring other members of the family to leave involves such interference.
7.2 In the present case, the Committee considers that a decision of the State party to deport two parents and to compel the family to choose whether a 13-year old child, who has attained citizenship of the State party after living there 10 years, either remains alone in the State party or accompanies his parents is to be considered “interference” with the family, at least in circumstances where, as here, substantial changes to long-settled family life would follow in either case. The issue thus arises whether or not such interference would be arbitrary and contrary to article 17 of the Covenant.
7.3 It is certainly unobjectionable under the Covenant that a State party may require, under its laws, the departure of persons who remain in its territory beyond limited duration permits. Nor is the fact that a child is born, or that by operation of law such a child receives citizenship either at birth or at a later time, sufficient of itself to make a proposed deportation of one or both parents arbitrary. Accordingly, there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons. That discretion is, however, not unlimited and may come to be exercised arbitrarily in certain circumstances. In the present case, both authors have been in Australia for over fourteen years. The authors’ son has grown in Australia from his birth 13 years ago, attending Australian schools as an ordinary child would and developing the social relationships inherent in that. In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness. In the particular circumstances, therefore, the Committee considers that the removal by the State party of the authors would constitute, if implemented, arbitrary interference with the family, contrary to article 17, paragraph 1, in conjunction with article 23, of the Covenant in respect of all of the alleged victims, and, additionally, a violation of article 24, paragraph 1, in relation to Barry Winata due to a failure to provide him with the necessary measures of protection as a minor.
8. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the removal by the State party of the authors would, if implemented, entail a violation of articles 17, 23, paragraph 1, and 24, paragraph 1, of the Covenant.
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Comment
This case dealt with an uncommon situation where parents who had no right to residence in Australia, wished to reside with their minor child who was an Australian national. The Human Rights Committee found that the mere fact that a child has citizenship is not sufficient of itself to make deportation of its parents arbitrary. In this case, however, the Committee found that, in view of the duration of time the authors had spent in Australia, it was ‘incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness.’ The Committee found a violation of Articles 17 (prohibition of arbitrary interference in family life), 23 (right of the family to protection by the state) and 24 (right of the child to protection). (See also Stewart v. Canada, Communication No. 538/1993, Views of 1 November 1996 and Canepa v. Canada, Communication No. 558/1993, Views of 3 April 1997).
In the following case, the African Commission found that mass expulsions of aliens violated the right to respect for the family.
Union Inter Africaine des Droits de l’Homme, Fédération Internationale des Ligues des Droits de l’Homme, Rencontre Africaine des Droits de l’Homme, Organisation Nationale des Droits de l’Homme au Sénégal and Association Malienne des Droits de l’Homme v. Angola
African Commission on Human and peoples’ Rights
Communication No. 159/96
Eleventh Annual Activity Report 1997-1998, Annex II
Keywords: family - expulsion of aliens - discrimination - due process – property
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THE FACTS:
1. [?] According to the complainants, between April and September 1996, the Angolan government rounded up and expelled West African nationals on its territory. These illegal expulsions were preceded by acts of brutality committed against Senegalese, Malian, Gambian, Mauritanian and other nationals. Those affected lost in the process their belongings.
2. The complainants maintain that the Angolan State violated the provisions of articles 2, 7 paragraph 1 a, 12 paragraphs 4 and 5 of the African Charter on human and Peoples’ Rights.
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THE LAW:
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11. The evidence show that between April and September 1996, the government of the Republic of Angola embarked on mass expulsion of aliens from its territory, and that these expulsions were illegal and arbitrary, and in violation of article 12, paragraphs 4 and 5 of the African Charter on Human and Peoples’ Rights.
12. According to information at the disposal of the Commission, it appears that those expelled did not have the possibility to challenge their expulsion in court. In communication No: 71/92 “Rencontre Africaine pour la Défense des Droits de l’Homme vs Zambia” (20th Session, October 1996), the Commission was of the view that “the massive nature of the arrests, the fact that the victims were kept in detention before the expulsions and the pace with which they were carried out did not leave any opportunity to the complainants to establish the illegality of these acts before the Courts ???” In view of the foregoing, the Commission notes that local remedies were not accessible to the complainants.
13. On these grounds, the Commission declared the communication admissible.
THE MERITS:
14. Article 12 paragraph 4 stipulates that a non national legally admitted in a territory of a State party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. Paragraph 5 of the same article stipulates that “the mass expulsion of non nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.”
15. In communication 71/92 cited here above, the Commission indicated that “mass expulsion was a special threat to human rights. A government action specially directed at specific national, racial ethnic or religious groups is generally qualified as discriminatory in the sense that, none of its characteristics has any legal basis or could constitute a source of particular incapacity.
16. The Commission concedes that African States in general and the Republic of Angola in particular are faced with many challenges, mainly economic. In the face of such difficulties, States often resort to radical measures aimed at protecting their nationals and their economic from non-nationals. Whatever, the circumstances may be however, such measures should not be taken at the detriment of the enjoyment of human rights. Mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial or other considerations “constitute a special violation of human rights” 4.
17. This type of deportations calls into question a whole series of rights recognized and guaranteed in the Charter; such as the right to property (article 14), the right to work (article 15), the right to education (article 17 paragraph 1) and results in the violation by the State of its obligations under article 18 paragraph 1 which stipulates that “the family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health”. By deporting the victims, thus separating some of them from their families, the defendant State has violated and violates the letter of this text.
18. Article 2 of the Charter emphatically stipulates that “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.” This text obligates States Parties to ensure that persons living on their territory, be they their nationals or non nationals, enjoy the rights guaranteed in the Charter. In this case, the victims rights to equality before the law were trampled on because of their origin.
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20. The Commission does not wish to call into question nor is it calling into question the right of any State to take legal action against illegal immigrants and deport them to their countries of origin, if the competent courts so decide. It is however of the view that it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the Charter and international law.
ON THESE GROUNDS, THE COMMISSION.
1. Declares that the deportation of the victims constitute a violation of articles 2, 7 paragraph 1a, 12 paragraphs 4 and 5 as well as articles 14 and 18 of the African Charter on Human and Peoples’ Rights.
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Another case brought to the African Commission regarding the right to respect and protect the family and expulsion is Amnesty International v. Zambia (Communication 212/98, Twelfth Activity Report, 1998-1999, Annex V). The Commission found that by expelling the victims ‘the Zambian government has forcibly broken up the family unit which is the core of society thereby failing in its duties to protect and assist the family as stipulated in Article 18(1) and 18(2) of the Charter’.
States sometimes invoke their sovereign control over immigration matters as a general justification for the resulting interference with family life, without specifying any particular grounds. The United Kingdom did so in the case of Abdulaziz, Cabales, and Balkandali v. The United Kingdom (Application Nos. 9214/80, 9473/81, 9474/81, Judgement of 28 May 1985, abstracted in the right to equality and non-discrimination, Discrimination on grounds of sex). Here the European Court found the state in violation of Article 14 in conjunction with Article 8. In this case, the state denied the right of entry to the husbands of three permanent residents. The Court upheld these actions, agreeing with the Government’s argument that the applicants had ’not shown that there were obstacles to establishing family life in their own or their husbands’ home countries or that there were special reasons why that could not be expected of them’. At the same time, the Court, referring to the Marckx case, noted that in principle:
[B]y guaranteeing the right to respect for family life, Article 8 “presupposes the existence of a family”. [?]. However, this does not mean that all intended family life falls entirely outside its ambit. Whatever else the word “family” may mean, it must at any rate include the relationship that arises from a lawful and genuine marriage [?] even if a family life has not yet been fully established.
In Cruz Varas et al. v. Sweden (Application No. 15576/89, Judgement of 20 March 1991) the applicants, Chilean citizens, came to Sweden in 1987. The National Immigration Board decided to expel the applicants and refused their request for refugee status. All three applicants alleged, inter alia, a violation of their right to respect for private and family life on the grounds that they had been separated as a result of the expulsion to Chile of the first applicant. The European Court noted, however, that the second and third applicants went into hiding to evade enforcement of the expulsion order. The evidence did not show that there were obstacles to establishing family life in their home country. The Court found that responsibility in these circumstances for the resulting separation of the family could not be imputed to Sweden.