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THIRD
SECTION
CASE OF ABOU AMER v. ROMANIA
(Application
no. 14521/03)
JUDGMENT
STRASBOURG
24 mai
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Abou Amer v.
Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 3 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14521/03) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Fahed Youseef Abdalla Abou Amer (“the
first applicant”), a stateless person of Palestinian origin who
was born in Egypt and Mrs Ana-Maria Abou Amer (“the second
applicant”) his wife, a Romanian national, on 6 May 2003.
- The
applicants, who had been granted legal aid, were represented by Mr
Jan-Ǻke Höög, a lawyer practising in Motala, Sweden.
The Romanian Government (“the Government”) were
represented by their Agent, Mr Răzvan-Horaţiu Radu, of
the Ministry of Foreign Affairs.
- On
28 May 2009 the President of the Third Section decided to communicate
to the Government the complaints concerning the conditions of the
first applicant’s detention pending expulsion, the lawfulness
of his detention and the alleged interference with the applicants’
Article 8 rights. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1969 and 1979 respectively and live in
Motala, Sweden. At the date of the facts in the present application,
they were living in Romania.
- The
first applicant was granted refugee status by the Romanian
authorities in 1998, along with his father and brothers. In 2000 he
married the second applicant. Their daughter was born in 2001 and
acquired Romanian nationality at birth. At the date of the facts, the
applicant was legally residing and working in Romania.
- In
March 2003 the applicants and their daughter visited family in Egypt.
- Meanwhile,
on 25 March 2003, at the request of the Romanian Intelligence Service
(Serviciul român de informaţii) and in accordance
with Government Emergency Ordinance no. 194/2002 on the rules
governing aliens in Romania (“Ordinance no. 194”), the
prosecutor at the Bucharest Court of Appeal issued an order in which
the first applicant was declared an “undesirable person”
and banned from Romania for ten years on the ground that there was
“sufficient and serious intelligence” that he was
“engaged in activities capable of endangering national
security”.
- Based
on that order, on 28 March 2003 the prosecutor decided to take the
applicant into public custody in the Otopeni Centre for the
Reception, Selection and Accommodation of Foreigners (“the
Otopeni Centre”), until his deportation was possible. The
decision was taken for an initial period of thirty days, until 26
April 2003.
- On
6 April 2003, in the morning, when the applicants and their daughter
returned to Romania, the first applicant was served with the order of
25 March 2003 and the decision of 28 March 2003 and prohibited from
leaving the airport and entering Romania. He was informed of the
reasons for that interdiction and asked to leave the territory
immediately.
- At
1 p.m., after a brief meeting with his wife, the first applicant
bought a ticket for Zurich and boarded a flight to that destination.
As entry into Switzerland was denied, on 7 April he returned to
Romania, where he was kept in the airport’s transit zone.
According
to the applicant’s statements he was placed in the airport’s
basement, in a room without heating, with only a thin cover to
protect him from the cold. There was no bathroom. He had access to a
toilet but had to be escorted there. Food was scarce and of poor
quality. His wife was not allowed to see him or to send him clothes
and food.
- On
8 April he was visited by a representative of the Romanian Council
for Refugees (Consiliul Român pentru Refugiaţi). On
that occasion, he did not complain about his detention. On the same
day he was seen by a doctor who reported that he was in good general
health.
- On
the same day, through the offices of his lawyers, the applicant
challenged the prosecutor’s order of 25 March 2003 before the
Bucharest Court of Appeal. He argued that he had not done anything
that would harm national security and that the order had disrupted
his family life.
- On
8 April at 9.45 a.m. the authorities tried to repatriate the
applicant to Egypt, which also refused him access to the territory
and returned him to Romania on 9 April.
The
authorities kept him in the transit area while they attempted to get
him a visa for Egypt.
- On
11 April 2003 the Bucharest Court of Appeal stayed the execution of
the prosecutor’s order of 25 March 2003, pending the outcome of
the proceedings for its annulment. The decision to take the applicant
into public custody remained operative.
- On
14 April 2003 the applicant was transferred to the Otopeni Centre
where he claimed he was held in similar conditions to those in the
airport. He stated that he had been allowed contact with his wife,
who had brought him food and clothes. Upon transfer he had received
an information note in English explaining the reasons he was being
taken into public custody in the Centre, namely, that his request for
refugee status had been denied, that an order for expulsion had been
issued against him and that he had been declared “undesirable”
on Romanian territory. He was also informed that the custodial
measure would remain in place until travel documents were obtained
and the return formalities completed.
- The
applicant contested his taking into public custody before the
Bucharest Court of Appeal. He also complained that the conditions in
the transit zone were inadequate for a long period of detention. On
21 April 2003 the Bucharest Court of Appeal annulled the decision of
28 March. The Authority for Foreigners (Autoritatea pentru
străini) appealed. The parties failed to provide any
information on the subsequent proceedings.
On 24
April 2003 the Bucharest Court of Appeal extended the applicant’s
public custody by three months. It noted that the decision of
21 April 2003 was not final and thus could not be taken into
account, and considered that the reasons that justified the initial
measure still existed. Furthermore, as long as the proceedings
against the prosecutor’s order were pending the measure was
still needed and the applicant could not be removed from the
territory. It also dismissed the applicant’s arguments based on
the infringement of his right to family life, as it considered that
taking him into public custody did not breach Article 8 of the
Convention.
- In
a decision of 4 June 2003 the Bucharest Court of Appeal upheld
the prosecutor’s order of 25 March 2003, on the grounds that
the measure had been taken in conformity with Ordinance no. 194
and that the applicant had not proved the contrary. It also rejected
the applicant’s argument based on the right to family life, as
it considered that the fact that he was married did not exonerate him
from complying with the law and that the order did not interfere with
his family life.
The
decision was final.
- On
3 June 2003 the applicants, who had found out through their own means
about the possibility of being granted entry to Sweden, left for
Sweden with their daughter, where they currently reside. The first
applicant’s father and brothers and the second applicant’s
family are still living in Romania.
II. RELEVANT DOMESTIC LAW
- Articles
81 to 85 of Ordinance no. 194 describe the procedure for declaring a
person “undesirable” and contesting that measure. A
detailed description of that procedure is available in Lupsa v.
Romania, no. 10337/04, ECHR 2006 VII.
- According
to Article 93 of Ordinance no. 194 a magistrate may decide to take an
alien into public custody if the person cannot be returned within the
time-limit established (24 hours if the individual possesses a valid
passport and money under Article 87 § 2). The measure is applied
for an initial period of 30 days and a request for extension made by
the Aliens Authority will be examined by the court within the
territorial jurisdiction of the accommodation centre. The measure can
be challenged before the Bucharest Court of Appeal. Such an appeal
does not stay the enforcement of the measure.
III. COUNCIL OF EUROPE TEXTS
- In
1995 the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (“the CPT”) visited
the area of Bucharest airport where persons who were denied access to
the country were kept. They found that the conditions of detention
were acceptable for short stays, that the room was not overcrowded
and was well lit and aired.
In
1995, 1999 and 2002-2003, the CPT visited the Otopeni Centre. In the
last visit, they found that the conditions of detention were good,
the rooms were spacious, well lit and aired and well equipped. It
also found the toilets and common areas acceptable. Visits and
telephone calls were allowed and the medical facilities were
acceptable. The CPT expressed concern about the complaints they
received from some individuals in the centre about the personnel
having asked for bribes in exchange for certain privileges. They also
considered that the centre should offer a wider range of activities
to those lodged there.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
first applicant complained that the conditions in which he had been
held in the airport facilities and in the Otopeni Centre contravened
the requirements of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- The
Government pleaded non-exhaustion of domestic remedies, as the first
applicant had not lodged a complaint with the domestic authorities
about the conditions of his detention.
- Furthermore,
they considered that the contested measures did not affect the
applicant’s freedom of movement, as he remained free to leave
Romania at any point, which in the end he did, for Sweden. Therefore
the fact that he had chosen to stay in the airport holding area and
the Otopeni Centre was not imputable to the State.
- The
Government contended that the conditions of accommodation were
acceptable in both facilities. They submitted that in the airport
transit zone the applicant had been held in a 48.27 sq. m room which
had four beds and a window, with toilets and shower facilities
nearby. On 7 April 2003 he was alone in the room. The airport
administration offered him food. As for his stay in Otopeni, the
Government submitted that the applicant had been offered bedding and
cutlery.
- No
visit requests were made during the applicant’s stay in the
airport holding area. In the Otopeni Centre he received 25 visits
from the second applicant, his lawyer and other individuals.
- The
applicant reiterated that he had been kept in degrading conditions.
B. The Court’s assessment
- The
Court reiterates that to fall within the scope of Article 3,
ill treatment must attain a minimum level of severity. The
assessment of this minimum is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and
state of health of the victim (see, for example, Ciorap v.
Moldova, no. 12066/02, § 63, 19 June 2007). Furthermore,
measures depriving a person of his liberty may often involve an
inevitable element of suffering or humiliation. Nevertheless, the
suffering and humiliation involved must not go beyond the inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment (Orchowski
v. Poland, no. 17885/04, §
120, ECHR 2009 (extracts)).
- In
the case under examination, the parties gave conflicting descriptions
of the conditions in the two detention facilities where the applicant
was accommodated. Based on the information available to it, the Court
must first ascertain whether the conditions attained the threshold
for the applicability of Article 3.
- The
applicant’s initial submissions to the Court offered prima
facie evidence of the poor conditions in the two facilities.
However, according to the Government the conditions in both the
airport facilities and the Otopeni Centre were acceptable by
Convention standards. The Court also notes that the Government’s
position is fully supported by the findings of the CPT (see paragraph
21 above).
The
applicant failed to submit any additional evidence to support his
statements. Moreover, the only complaint he lodged with the courts
concerned the alleged inadequacy of the transit zone for a long
period of detention. While this allegation is confirmed by the CPT’s
findings, his seven-day detention in the transit zone cannot be
considered long (see also paragraph 40 below).
- The
Court notes that the applicant did not lodge any specific complaint
with the authorities – courts, the airport or Otopeni Centre
administration, or the representatives of the Romanian Council for
Refugees – about the conditions of his detention. He thus
failed to allow the State authorities the opportunity to address the
alleged flaws he described in his application to the Court. While
leaving open the question whether any of these avenues could have
constituted an effective remedy at that time, the Court considers
nevertheless that such complaints could have at least provided
evidence to support the applicant’s claims to the Court.
- The
foregoing considerations are sufficient to enable the Court to
conclude that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
first applicant complained that he was held in custody despite his
expulsion being clearly impossible and that he had no effective
remedy by which to challenge the legality of his detention. He relied
on Article 5 of the Convention, which reads as follows in so far as
relevant:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. The parties’ positions
- The
Government contested that argument. They considered that a
distinction should be made between the time spent by the applicant in
the airport transit zone, which, in their view, did not constitute
“detention”, as the applicant remained free to leave at
any moment, and the time spent in the Otopeni Centre. They further
contended that the measures taken by the authorities had been lawful
and that the period spent by the applicant in public custody was
reasonable according to the Court’s standards.
- The
applicant argued that the shifting of the burden of proof by the
domestic courts dealing with the appeal against the prosecutor’s
order had been incorrect.
He
also pointed out that the final domestic decision was that of 4 June
2003, which rendered ineffective all previous court decisions
favourable to him.
B. The Court’s assessment
- The
Court notes at the outset that the applicant was taken into public
custody pursuant to the prosecutor’s decision of 28 March 2003.
1. Alleged arbitrariness of the measure
- The Court reiterates that in order to avoid being
branded arbitrary, detention under Article 5 § 1(f)
must be carried out in good faith; it must be closely connected to
the ground of detention relied on by the Government; the place and
conditions of detention should be appropriate; and the length of the
detention should not exceed that reasonably required for the purpose
pursued (see Saadi v. the United Kingdom [GC], no. 13229/03,
§§ 72 and 74, ECHR 2008 ...; and A. and Others v.
the United Kingdom [GC], no. 3455/05,
§ 164, 19 February 2009).
- The
Court notes that it is not disputed that the first applicant was held
in the airport facilities and in the Otopeni Centre “to prevent
him entering into the country unauthorised” and “with a
view to his deportation”. It reiterates that detention under
Article 5 § 1 (f) does not have to be reasonably considered
necessary; all that is required to justify detention under this
provision is that “action is being taken with a view to
deportation”. It is therefore immaterial, for the purposes of
Article 5 § 1 (f), whether the underlying decision to expel can
be justified under national or Convention law (Chahal v. the
United Kingdom, 15 November 1996, § 112, Reports of
Judgments and Decisions 1996 V and Kaya v. Romania,
no. 33970/05, § 17, 12 October 2006).
- The
Court considers that the measure of taking the applicant into public
custody affected him de facto from the moment when he arrived
at the airport, on 6 April 2003, and was refused entry to Romania. It
therefore cannot agree with the Government that the time spent in the
airport transit zone was not “detention”. The applicant
did not choose to stay in the transit zone. He was banned from
entering Romania and the two other States to which he travelled
(Switzerland and Egypt) refused him entry. His situation differs
therefore from that of the applicants in Mogoş v. Romania
((dec.), no. 20420/02, 6 May 2004) who refused to enter Romania
although there was no obstacle to their entry. He is rather in a
comparable situation to that of the applicants in Shamsa v. Poland
(nos. 45355/99 and 45357/99, §§ 16 and 47, 27 November
2003) who were not allowed by the authorities to enter Poland from
the transit zone.
- The
measure in the present case was taken by a decision of the prosecutor
for an initial period of 30 days and subsequently extended by the
court in an adversarial procedure. The Court is satisfied that the
domestic law has been respected in the case and that the measure was
taken with the sole aim of facilitating the applicant’s removal
from the territory (see, a contrario, Shamsa, cited
above, §§ 53-60). The facts of the case indicate that
during the custody period, the authorities were making active efforts
to have the applicant removed from the country.
Moreover,
the length of the measure did not exceed that reasonably required for
the purpose pursued. The applicant was detained for about two months
and chose to leave for Sweden. The Court has already found that a
three-month detention in similar conditions did not raise an issue
under Article 5 § 1 (f) of the Convention (see A. and Others,
cited above, § 168).
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. Right to an effective remedy
- The
Court notes that Article 5 § 4 guarantees a right to “everyone
who is deprived of his liberty by arrest or detention” to bring
proceedings to test the legality of the detention and to obtain
release if the detention is found to be unlawful (see A and
Others, cited above, § 200). In cases of detention with a
view to deportation Article 5 § 4 does not require that the
domestic courts have the power to review whether the underlying
decision to expel is justified under national or Convention law (see
Chahal, cited above, § 128).
- In
the case at hand, the Court notes that the applicant did have the
opportunity to challenge the custodial measure and participated in
the proceedings for the extension of the measure (see paragraph 16
above). It considers that, despite the applicant being dissatisfied
with their outcome, those appeals proved to be “effective”
under the Court’s established case law (see, mutatis
mutandis, Čonka v. Belgium, no. 51564/99, § 75,
ECHR 2002 I).
- It
follows that this complaint is also manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complained, under Article 8 of the Convention, that their
family life had been compromised by the prosecutor’s order to
deport the first applicant and to ban him from Romania for ten years;
they had been forced to leave Romania in order to be able to continue
a family life and had had to leave their respective families behind.
The relevant parts of Article 8 of the Convention read as follows:
“1. Everyone has the right to respect
for his ... family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ arguments
- The
Government considered that the measures taken against the first
applicant did not interfere with the applicants’ family life.
They contended that there was no right guaranteed by the Convention
for the applicants to establish their residence in Romania.
The
applicants were free to leave Romania at any time, and have
established their home in Sweden where they are currently living a
normal family life with their child.
- Even
assuming that the measures constituted an interference with the
applicants’ right to respect for their family life, the
interference met the criteria set forth in the second paragraph of
Article 8. It was provided by Articles 83 and 93 of Ordinance no.
194, which describe with precision the behaviour expected from
foreigners, as well as the consequences of not respecting those
requirements.
The
Government put forward that the measures were aimed at protecting
national security and were proportionate to that aim.
- The
applicants argued that they had been forced to leave Romania as a
result of the measure taken against the first applicant, that being
their only choice for re-establishing their family life. They further
argued that the prosecutor could not justify the issuing of the order
of 25 March 2003 and that the first applicant had not been engaged in
any activities that would pose a threat to national security.
2. The Court’s assessment
a) Whether there was an interference
- The
Court reaffirms at the outset that a State is entitled, as a matter
of international law and subject to its treaty obligations, to
control the entry of aliens into its territory and their residence
there (see, among many other authorities, Abdulaziz, Cabales and
Balkandali v. the United Kingdom, judgment of 28 May 1985, Series
A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21
October 1997, Reports of Judgments and Decisions 1997-VI, p.
2264, § 42). The Convention does not guarantee the right of an
alien to enter or to reside in a particular country and, in pursuance
of their task of maintaining public order, Contracting States have
the power to expel an alien under certain circumstances. However,
their decisions in this field must, in so far as they may interfere
with a right protected under paragraph 1 of Article 8, be in
accordance with the law and necessary in a democratic society, that
is to say justified by a pressing social need and, in particular,
proportionate to the legitimate aim pursued (see Dalia v. France,
judgment of 19 February 1998, Reports 1998-I, p. 91, §
52; Mehemi v. France, judgment of 26 September 1997, Reports
1997-VI, p. 1971, § 34; Boultif v. Switzerland, no.
54273/00, §§ 39 and 46, ECHR 2001-IX; Slivenko v. Latvia
[GC], no. 48321/99, ECHR 2003-X, § 113; Üner v.
the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 XII;
Al-Nashif v. Bulgaria, no. 50963/99, § 114, 20 June
2002; and Lupsa, cited above, § 25).
- In
the case at hand, it is not disputed that the applicants had a family
life in Romania at the time of the events. The first applicant was
granted a refugee status and was working in Romania, in 2000 had
married the second applicant, a Romanian national, and in 2001 a
child, who acquired Romanian nationality at birth, had been born to
them. Both the first applicant’s and the second applicant’s
families lived at that time and, according to the available data,
continue to live, in Romania.
- The
Court notes that on 25 March 2003 the prosecutor issued an order in
which the first applicant was declared an “undesirable person”
and banned from Romania for ten years.
- The
Court also takes note of the fact that the applicants left Romania
and restarted their family life in Sweden only two months after the
interruption caused by the measure of declaring the first applicant
an “undesirable person” and banning him from the
territory. However, it considers that during that time, the first
applicant could neither enter Romania nor leave for another country,
as the States he attempted to travel to denied him entry. Moreover,
it notes that the applicants’ decision to leave Romania was not
taken freely, as Sweden appeared to be the only state where they
could resume their family life expediently.
From
this point of view, the case differs from Sadet v. Romania
((dec.), no. 36416/02, 20 September 2007) where the applicants chose
to leave Romania before the expulsion order was even enforced,
although they were admitted in the interest of family reunification,
and did not consider returning to Romania.
- The
Court reiterates that even if Article 8 of the Convention does not
contain an absolute right for any category of alien not to be
expelled, its case-law amply demonstrates that there are
circumstances where the expulsion of an alien will give rise to a
violation of that provision (see Üner, cited
above, § 57). Taking that case-law into account, as well as the
applicants’ particular situation in the present case, the Court
will consider that the forced departure from Romania as a result of
the first applicant being declared an “undesirable person”
and being banned from Romania by the prosecutor’s order of 25
March 2003 constituted an interference with the applicants’
family life (see also, mutatis mutandis, Slivenko v. Latvia
[GC], no. 48321/99, § 97, ECHR 2003 X).
b) Whether the interference was justified
- The
Court refers to the principles established in its case-law regarding
interference with a person’s Article 8 rights for reasons of
national security (see, in particular, the above-cited judgments
Al-Nashif, § 119; Lupsa, §§ 32-38;
Kaya, §§ 38-39; and C.G. and Others v. Bulgaria,
no. 1365/07, §§ 39 40, 24 April 2008).
- In
the case of Lupsa, the Court has already examined the
lawfulness of a similar interference and concluded that the
possibility to appeal against the prosecutor’s order, under
Ordinance no. 194, did not offer the necessary guarantees against
arbitrariness (see Lupsa, cited above, §§ 41-42).
- As
in Lupsa, in the present case the prosecutor did not present to the
first applicant or to the Court of Appeal the concrete reasons that
founded the taking of the measure. No criminal charges were brought
against the first applicant for any crimes, let alone for deeds that
might constitute a threat to national security.
- The
Court of Appeal confined itself to a purely formal examination of the
prosecutor’s order. Not only did it fail to seek the
prosecutor’s reasons for declaring the applicant an
“undesirable person”, but it went further and placed on
the first applicant the burden of proving that he had not been
involved in any activities threatening national security. Such proof
seems impossible to produce, notably when the first applicant was not
informed of the concrete suspicions against him.
- The
Court sees no reason in the present case to reach a different
conclusion than the one in Lupsa. It follows that the
applicants did not enjoy the minimum degree of protection against
arbitrariness on the part of the authorities, and that the
interference with their family life was not in accordance with “a
law” satisfying the requirements of the Convention.
- Having
regard to that finding, the Court deems it unnecessary to continue
the examination of the applicants’ complaint to determine
whether the interference pursued a “legitimate aim” and
was “necessary in a democratic society” (see Lupsa,
§ 43; and Kaya, § 44, judgments cited above).
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 8 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants raised several other complaints, under Articles 6 § 1
and 13 of the Convention and Article 3 of Protocol No. 4 to the
Convention.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 50,000 euros (EUR) each in respect of
non pecuniary damage.
- The
Government argued that the applicants failed to prove the existence
of a causal link between the violations alleged and their claims for
non-pecuniary damage.
They
also considered that the amount claimed was exaggerated and that the
finding of a violation constituted in itself sufficient just
satisfaction for the non-pecuniary damage alleged.
- The
Court considers that the applicants suffered distress as a result of
the unlawful interference with their right to respect for their
family life. It therefore awards them jointly EUR 8,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 1,960 for the costs and expenses incurred
before the Court, representing the difference between the legal fees
for their lawyer and the money received in legal aid from the Council
of Europe.
- The
Government argued that the applicants had failed to justify their
claims.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the above criteria and to the fact that the applicants have received
EUR 850 in legal aid, and given the absence of any additional
evidence, the Court rejects the claim for costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 8
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds
(a) that
the respondent State is to pay jointly to the applicants, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 8,000 (eight thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 24 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
