Case summaries
Violation of Article 8 regarding the right to respect for family life, arising from a domestic court order for the return of two children from Finland to Russia under the Hague Child Abduction Convention.
The Court ruled that Malta violated Article 3, 5 and 13 of the Convention given the fact that the applicants, who were minors, endured inhumane detention conditions, lacked an effective remedy to challenge their detention, and faced unlawful deprivation of their liberty.
Detention beyond the period for which an individual would otherwise need to be detained pursuant to Schedule 2 § 16(1) for the purpose of an age assessment that will or doesn’t comply with applicable legal standards would be unlawful. Also, both common law and section 55 of the BCIA 2009 require a fair and careful process involving appropriate safeguards, which the Guidance doesn’t provide and is also inconsistent with the Secretary of State for the Home Department (SSHD) pre-existing polices.
Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.
Article 4 ECHR requires that victims of trafficking are promptly identified as soon as there is credible suspicion of trafficking-related circumstances, regardless of whether the victims were able to identify and mention their experience.
To the extent that is possible, potential victims of trafficking can only be prosecuted following an assessment of whether they have been trafficked. Prosecutorial service should be aware of protocols around trafficking cases.
The lack of an assessment of whether the applicants had been trafficked prevented them from obtaining evidence that were fundamentally related to their defence in violation of their right to a fair trial under Article 6. The domestic judicial procedure was also contrary to Article 6 insofar as the applicants’ subsequent claims regarding their trafficking were not adequately assessed.
The automatic application of domestic provisions regulating expulsion following a criminal conviction may amount to a violation of Article 8 where the impact of the removal measure on the family and isses of proportionality are not sufficiently assessed. In this assessment, the best interests of the child should bear significant weight.
The Court decided that the applicants’ arrest and detention were unlawful under Article 5 of the Convention. The eighth applicant’s complaint under Article 3 that she, a minor at the time, was not provided with adequate care in detention in connection with her pregnancy and the miscarriage she suffered was not accepted by the Court.
Courts must establish the current situation of the region from which the complainant originates and relate it to the individual situation of the complainant in the grounds of the decision.
In the case of an Afghan family, the lower instance court did not sufficiently consider the security situation in the complainants’ country of origin, in particular with regard to the situation for minors. Thereby the court violated the right to equal treatment among foreigners.
The detention of children is, in principle, permitted under Article 5 ECHR for the shortest amount of time, in appropriate conditions and facilities, and only after the Government has correctly concluded that less coercive measures are unavailable.
The complaint of the applicants under Article 3 are manifestly unfounded.
The Court ruled that the material conditions of detention exceeded Article 3 ECHR threshold and that the detention of children in such conditions, even for short periods, is also contrary to that Article. It also held that the complaint procedures that were indeed available to the applicants were ineffective, amounting to a violation of Article 13 ECHR.