EUROPEAN COMMISSION OF HUMAN RIGHTS

EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 23366/94

                     Francine Nsona and Bata Nsona

                                against

                            the Netherlands

                       REPORT OF THE COMMISSION

                       (adopted on 2 March 1995)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-15). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 21-42). . . . . . . . . . . . . . . . . . . . . . . . 4

III.  OPINION OF THE COMMISSION

      (paras. 43-71). . . . . . . . . . . . . . . . . . . . . . . . 8

      A.   Complaints declared admissible

           (para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8

      B.   Points at issue

           (para. 44) . . . . . . . . . . . . . . . . . . . . . . . 8

      C.   Article 3 of the Convention

           (paras. 45-54) . . . . . . . . . . . . . . . . . . . . . 8

           CONCLUSION

           (para. 55) . . . . . . . . . . . . . . . . . . . . . . .10

      D.   Article 8 of the Convention

           (paras. 56-60) . . . . . . . . . . . . . . . . . . . . .10

           CONCLUSION

           (para. 61) . . . . . . . . . . . . . . . . . . . . . . .10

      E.   Article 13 of the Convention

           (paras. 62-67) . . . . . . . . . . . . . . . . . . . . .11

           CONCLUSION

           (para. 68) . . . . . . . . . . . . . . . . . . . . . . .11

      F.   Recapitulation

           (para. 69-71). . . . . . . . . . . . . . . . . . . . . .12

                           TABLE OF CONTENTS

                                                                 Page

DISSENTING OPINION OF Mrs. G.H. THUNE AND Mr. I. BÉKÉS. . . . . . .13

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .14

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicants are two Zaïrese citizens, born in 1984 and 1960

respectively. It is alleged that the first applicant is the niece of

the second applicant. The first applicant resides in Zaïre and the

second applicant at Vlaardingen, the Netherlands. Before the Commission

the first applicant was represented by the second applicant. The second

applicant was represented by Mr. W.A. Venema, a lawyer practising in

Rotterdam.

3.    The application is directed against the Netherlands.  The

respondent Government were represented by their Agent, Mr. H.A.M. von

Hebel of the Netherlands Ministry of Foreign Affairs.

4.    The case concerns the first applicant's expulsion to Zaïre and

the conditions under which it was carried out. The applicants invoke

Articles 3, 8 and 13 of the Convention.

B.    The proceedings

5.    The application was introduced on 25 January 1994 and registered

on 31 January 1994.

6.    The applicants requested a ruling under Rule 36 of the

Commission's Rules of Procedure but the President on 31 January 1994

found no basis for such a decision.

7.    The President further decided, pursuant to Rule 48 para. 2 (b)

of the Commission's Rules of Procedure, to give notice of the

application to the respondent Government and to invite the Government

to submit written observations on the admissibility and merits of the

application.

8.    The Government's observations were submitted on 23 March 1994.

The applicants replied on 30 April 1994 after an extension of the time-

limit.

9.    On 6 July 1994 the Commission declared admissible the applicants'

complaints under Articles 3, 8 and 13 of the Convention. It declared

inadmissible the remainder of the application.

10.   The text of the Commission's decision on admissibility was sent

to the parties on 7 July 1994 and they were invited to answer certain

questions put by the Commission and, if they so wished, to submit

further written observations and evidence.

11.   The Government submitted answers to the questions and further

observations on 26 September 1994.

12.   On 9 December 1994 the Commission granted the applicants legal

aid under the Commission's legal aid scheme.

13.   After having been granted two extensions of the time-limit until

21 October 1994 and 4 November 1994 respectively and after having been

refused a third extension, the second applicant's lawyer submitted

answers to the questions and further observations on

17 February 1995.

14.   The applicants' submissions were submitted after the expiry of

the last time-limit fixed for this purpose. On 21 February 1995 the

Commission decided that these submissions should not be taken into

account.

15.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.    The present Report

16.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

      MM.  C.A. NØRGAARD, President

           H. DANELIUS

           C.L. ROZAKIS

           G. JÖRUNDSSON

           S. TRECHSEL

           A.S. GÖZÜBÜYÜK

           A. WEITZEL

           J.-C. SOYER

           H.G. SCHERMERS

      Mrs. G.H. THUNE

      Mr.  F. MARTINEZ

      Mrs. J. LIDDY

      MM.  L. LOUCAIDES

           J.-C. GEUS

           M.P. PELLONPÄÄ

           B. MARXER

           M.A. NOWICKI

           I. CABRAL BARRETO

           B. CONFORTI

           I. BÉKÉS

           J. MUCHA

           D. SVÁBY

           E. KONSTANTINOV

           G. RESS

17.   The text of this Report was adopted on 2 March 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

18.   The purpose of the Report, pursuant to Article 31 of the

Convention, is:

      (i)  to establish the facts, and

      (ii) to state an opinion as to whether the facts found disclose

           a breach by the State concerned of its obligations under

           the Convention.

19.   A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

20.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

21.   On 29 December 1993 the first applicant, Francine Nsona, then

nine years old, arrived in the Netherlands at Schiphol airport in the

company of the second applicant and the latter's son. Both children

were mentioned in the second applicant's passport as being her

children. The applicants allege that the first applicant is the niece

of the second applicant.

22.   Following an investigation by the Royal Military Constabulary

(Koninklijke Marechaussee), entrusted with the control of entry of

persons on Dutch territory, the second applicant and her son were

allowed to enter the Netherlands on 30 December 1993 since they held

valid residence permits. As the first applicant did not have an entry

visa or an authorisation for temporary stay (machtiging tot voorlopig

verblijf), she was refused entry and taken to the airport hotel at

Schiphol, where she stayed under supervision of the Royal Military

Constabulary. Another Zaïrese national, Mrs. M.M., who had arrived on

the same flight, was also refused entry into the Netherlands.

23.   The second applicant was informed by the Royal Military

Constabulary that she would have to accompany the first applicant back

to Zaïre. A seat for the first applicant had already been reserved on

a flight on 3 January 1994 to Kinshasa via Zürich.

24.   On 31 December 1993 the second applicant filed an application to

the head of the local police at Vlaardingen on behalf of the first

applicant for a residence permit as a foster child and for compelling

humanitarian reasons. She also started proceedings before the District

Court (Kantongerecht) of Schiedam requesting the Court to appoint her

as the temporary guardian (tijdelijk voogdes) of the first applicant.

The latter proceedings are currently still pending.

25.   On the same day the second applicant returned to Schiphol airport

requesting that the first applicant be allowed to accompany her to her

residence, since there was nobody in Zaïre who could take care of her.

She also stated she would not accompany the first applicant back to

Zaïre.

26.   Also on 31 December 1993, at about 12.30 hrs., the applicants'

lawyer, in summary proceedings (kort geding), requested the President

of the Regional Court (Arrondissementsrechtbank) of The Hague to issue

an injunction against the State as regards the first applicant's

expulsion. A hearing on this request was planned for 11 January 1994.

At about 13.00 hrs. this date was communicated by the applicants'

lawyer to the lawyer of the Dutch State (landsadvocaat), who in turn

informed the Ministry of Justice of this date.

27.   The responsible officer of the Ministry of Justice decided that

the first applicant was not allowed to remain in the Netherlands

pending the summary proceedings.

28.   On 31 December 1993, at about 14.30 hrs. the applicants' lawyer

was informed by telephone by an officer of the Royal Military

Constabulary that at that time the first applicant was boarding a plane

for Zürich. The lawyer informed this officer of the date for the

hearing in summary proceedings before the President of the Regional

Court. The officer, however, replied he could only stop her expulsion

on the basis of instructions from the Ministry of Justice. On the same

day, i.e. on 31 December 1993, at about 14.45 hrs., the Swissair plane

carrying the first applicant, in the company of Mrs. M.M. who was also

being expelled to Zaïre, left for Zürich. They were both booked on a

flight from Zürich to Kinshasa on 4 January 1994.

29.   On 3 January 1994 the applicants' lawyer requested the President

of the Regional Court of The Hague to advance the date of the hearing

planned for 11 January 1994 in order to prevent the first applicant

from being sent from Zürich to Kinshasa on 4 January 1994.  The hearing

took place the same day at 14.30 hrs. The applicants' lawyer changed

the initial request into a request to order the Netherlands State to

allow the first applicant to return to the Netherlands and subsequently

to allow her to remain in the Netherlands pending the proceedings on

her request for a residence permit.

30.    On 4 January 1994, following a request by the applicants' lawyer

not to send the first applicant to Zaïre, the Swiss authorities decided

to postpone her departure from Zürich. On 5 January 1994 the

applicants' lawyer was informed by the Swiss border police that her

departure was planned for 6 January 1994 and that this would only be

cancelled if evidence were submitted that she would not be met upon her

arrival in Zaïre, or if confirmation were received that she would be

granted entry into the Netherlands.

31.   Also on 4 January 1994 the President of the Regional Court of The

Hague declared the applicants' requests for an injunction inadmissible

on the ground that the first applicant was still a minor who could only

be represented by a guardian, whereas the second applicant did not have

custody over her and thus could not act on her behalf.

32.   The President, however, also had regard to the substance of the

case. Noting that no death certificate of the first applicant's mother

had been submitted, he found that a document of 24 September 1992,

submitted by the applicants and allegedly containing the last will of

the first applicant's mother in respect of the care of the first

applicant, did not contain any concrete indication that the second

applicant had in fact been entrusted with the custody over the first

applicant. Furthermore the President, noting that the second applicant

could have requested the District Court earlier than 31 December 1993

to be appointed temporary guardian, found no exceptional circumstances

on the basis of which the applicants' requests should be declared

admissible. Insofar as the applicants had invoked Article 3 of the

Convention, the President found no substantial grounds on the basis of

which the existence of a genuine and personal risk of inhuman treatment

in Zaïre had to be assumed. As regards the complaint under Article 3

of the Convention in respect of the manner of the first applicant's

expulsion, the President did not find it established that she travelled

unaccompanied. Finally, noting that the first applicant apparently had

been able to support herself either in Congo or in Zaïre after the

death of her mother until her departure for the Netherlands and finding

it not established that in these countries her care was not assured,

the President found no compelling humanitarian reasons on the basis of

which she should be allowed to reside in the Netherlands.

33.   On 18 January 1994 the applicants filed an appeal against this

decision with the Court of Appeal (Gerechtshof) of The Hague, which

proceedings are currently still pending.

34.   On 6 January 1994, the first applicant, who until that moment had

stayed in a Swissair nursery, left Zürich unaccompanied on a Swissair

flight to Kinshasa, where she arrived on 7 January 1994.  On the same

day the Netherlands Embassy at Kinshasa requested the International

Committee of the Red Cross to meet her at Kinshasa airport. This

request was later withdrawn, since the Dutch authorities had been

informed that the first applicant would be met there by a Mr. Monga,

the Director External Relations of the Banque du Zaïre and a business

relation of Swissair, who had been contacted by Swissair, but whom the

applicants allegedly did not know.

35.   On 7 January 1994 the head of the local police at Vlaardingen

rejected the second applicant's request on behalf of the first

applicant for a residence permit on formal grounds, inter alia, in that

the request had not been signed by the first applicant herself or by

her legal representative, the question of custody over the first

applicant still pending before the District Court. The second

applicant's appeal of 13 January 1994 to the Deputy Minister of Justice

is currently still pending.

36.   In a telefax of 11 January 1994, which was transmitted on

12 January 1994 by the Netherlands Red Cross Society to the applicants'

lawyer, the International Committee of the Red Cross stated that the

Embassy had informed the International Committee on 10 January 1994

that they were following the case and that a report had been sent to

the Ministry of Justice.

37.   On 13 January 1994 the applicants' lawyer requested the

Netherlands Embassy in Kinshasa to be informed whether or not the first

applicant had in fact been met by Mr. Monga, as stated by the Red Cross

Committee, and where and under which circumstances she was living. The

Embassy replied that he should address himself to the Information

Department of the Ministry of Justice.

38.   By letter of 31 January 1994 the Minister of Foreign Affairs

informed the Minister of Justice that on 28 January 1994 a meeting with

the first applicant, who was accompanied by Mr. A. Mbemba and Mrs. C.

Bakangadio with whom she had lived before she went to the Netherlands,

had taken place at the Netherlands Embassy at Kinshasa. The Minister

of Foreign Affairs stated that due to communication problems with the

Embassy in Kinshasa it had not been possible to inform the Embassy in

time about the first applicant's arrival in Kinshasa and that therefore

no employee of the Embassy had been present at her arrival, but that

she had been met by Mr. Monga. Since Mr. Monga could not reach the

first applicant's family or acquaintances, he had entrusted her to the

Zaïrese immigration authorities. In the afternoon of 7 January 1994 the

Director of the Immigration Department requested a member of his staff

to take the first applicant to the address she had given, as no member

of her family had contacted the immigration authorities. After having

spent the night at the home of this immigration officer, the first

applicant had been taken to the address of Mr. Mbemba and

Mrs. Bakangadio, where she now lived. The Minister added that the first

applicant also sometimes stayed with her grandmother.

39.   On 3 March 1994 the applicants and the association "Francine

Back" (Stichting Francine terug) requested the President of the

Regional Court of The Hague under Section 8:21 para. 3 of the General

Administrative Law Act (Algemene Wet Bestuursrecht) to take certain

interim measures, i.e., inter alia, to grant the first applicant

immediate provisional access to the Netherlands.  On 25 March 1994 the

Acting President of the Regional Court found the applicants' request

admissible and the association's request inadmissible, but rejected the

applicants' request for interim measures as ill-founded. The Acting

President held that the first applicant or her legal representative

should apply for an authorisation for temporary stay, whereas he did

not find it established that she could not be expected to await the

decision on this application in Zaïre.

40.   On 31 March 1994 the second applicant requested the Dutch

authorities to grant the first applicant an authorisation for temporary

stay. This request was rejected on 29 September 1994 by the Minister

of Foreign Affairs.

41.   On 30 August 1994 a second meeting between a representative of

the Netherlands Embassy in Zaïre, the first applicant, Mr. A. Mbemba

and Mrs. C. Bakangadio took place at the home of Mr. Mbemba and Mrs.

Bakangadio with whom the first applicant had lived before she had left

for the Netherlands with the second applicant, and with whom she still

resided.

42.   According to the Government, an investigation into the first

applicant's family is currently being conducted. So far no family link

has been established between the applicants, nor with any other living

person. Mrs. Bakangadio is a sister of a business friend of the first

applicant's father, who appears to have entrusted the care of the first

applicant to this business friend in case of his and his wife's death.

This friend in turn entrusted her care to Mrs. Bakangadio and her

family who accepted this responsibility. Mr. Mbemba and Mrs. Bakangadio

do not know any living relatives of the first applicant, they did not

know the second applicant, and are not acquainted with the document of

24 September 1992 allegedly containing the last will of the first

applicant's mother.

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

43.   The Commission has declared admissible the first applicant's

complaint that her expulsion, and the conditions under which the

expulsion order was carried out, constituted inhuman treatment contrary

to Article 3 (Art. 3) of the Convention. The Commission has also

declared admissible the applicants' complaints that the first

applicant's expulsion violated their right to respect for family life

as guaranteed by Article 8 (Art. 8) of the Convention and that they had

no effective remedy before a national authority available to them

within the meaning of Article 13 (Art. 13) of the Convention.

B.    Points at issue

44.   The following are the points at issue in the present application:

-     whether there has been a violation of Article 3 (Art. 3) of the

Convention, as regards the first applicant;

-     whether there has been a violation of Article 8 (Art. 8) of the

Convention, as regards both applicants;

-     whether there has been a violation of Article 13 (Art. 13) of the

Convention, as regards both applicants.

C.    Article 3 (Art. 3) of the Convention

45.   Article 3 (Art. 3) of the Convention provides as follows:

      "No one shall be subjected to torture or to inhuman or

      degrading treatment or punishment."

46.   The applicants complain that the first applicant's unaccompanied

return to Zaïre, the Dutch authorities' failure to make adequate

arrangements for her to be met upon her arrival there and the failure

to guarantee her care and welfare in Zaïre amount to treatment contrary

to Article 3 (Art. 3) of the Convention.

47.   The Government contend that the decision to refuse the first

applicant entry to the Netherlands did not violate her rights under

Article 3 (Art. 3) of the Convention, neither because of the general

situation in Zaïre nor in view of the way she was returned to her

country of origin.

48.   The Government submit that it has not been argued either in the

domestic proceedings or in the proceedings before the Commission that

the first applicant would risk treatment contrary to Article 3 (Art. 3)

of the Convention when returned to Zaïre. She is in the same position

as any Zaïrese national who has not been involved in any activities

against the Zaïrese Government. Moreover on the basis of her personal

circumstances no indications can be found that she would face a real

risk of ill-treatment there.

49.   As to the way in which she returned to Zaïre the Government

submit that the first applicant was accompanied until Zürich, where the

continuation of her return was delayed as a consequence of an

intervention by her lawyer. Furthermore, although upon her arrival in

Zaïre she was not met by an employee of the Netherlands Embassy, she

was not left unattended and was brought the next day to Mr. Mbemba and

Mrs. Bakangadio with whom she had already stayed before she left for

the Netherlands.

50.   The Commission recalls that Contracting States have the right,

as a matter of well-established international law and subject to their

treaty obligations, including those based on Article 3 (Art. 3) of the

Convention, to control the entry, residence and expulsion of aliens.

The expulsion of an alien by a Contracting State may give rise to an

issue under Article 3 (Art. 3) of the Convention, and hence engage the

responsibility of that State under the Convention, where substantial

grounds have been shown that the person concerned faced a real risk of

being subjected to treatment contrary to Article 3 (Art. 3) of the

Convention in the country to which this person was returned (cf. Eur.

Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series

A no. 215, p. 34, paras. 102-103).

51.   The Commission further recalls that a treatment has to reach a

certain level of severity before it can be considered to be contrary

to Article 3 (Art. 3) of the Convention. The assessment of this level

depends on all circumstances of the case, such as the nature and

context of the treatment, the manner and method of its execution, its

duration, its physical or mental effects and, in some instances, the

age of the victim (cf. Eur. Court H.R., Cruz Varas and Others judgment

of 20 March 1991, Series A no. 201, p. 31, para. 83).

52.   The Commission accepts that the first applicant's return to Zaïre

may have involved a certain hardship, but it does not find it

established that her expulsion to Zaïre exposed her to the risk of

treatment there which could be considered as being contrary to

Article 3 (Art. 3) of the Convention.

53.   As regards the manner in which the first applicant's expulsion

has been carried out, the Commission notes that, at the time of her

expulsion, the first applicant was nine years old and, allegedly,

without any relatives or other persons in Zaïre who could provide her

with the required care. The Commission further notes that she was

expelled from the Netherlands after two days and, after having spent

a number of days in a Swissair nursery in Zürich, arrived in Kinshasa

on 7 January 1994. The Commission finds it established that the

Netherlands authorities, prior to the first applicant's expulsion, had

failed to investigate her personal situation in Zaïre and had failed

to take adequate measures in respect of her arrival there.

54.   The Commission considers that, in these circumstances, the first

applicant's expulsion must have involved a certain hardship and cannot

be considered as having been carried out with due concern to the

relevant factors, but it did not reach the level of severity necessary

for Article 3 (Art. 3) to be applicable.

      CONCLUSION

55.   The Commission concludes, by 20 votes to 4, that there has been

no violation of Article 3 (Art. 3) of the Convention, as regards the

first applicant.

D.    Article 8 (Art. 8) of the Convention

56.   Article 8 para. 1 (Art. 8-1) of the Convention provides:

      "Everyone has the right to respect for his private and

      family life, his home and his correspondence."

57.   The applicants submit that the first applicant has no family life

with anyone in her country of origin and, as a consequence of her

expulsion, was barred from developing a family life with her aunt who

is the only remaining member of her family.  They argue that an

interference with a new family life may also be contrary to Article 8

(Art. 8) of the Convention, and that the restrictive Dutch immigration

policy is an insufficient basis for the conclusion that the first

applicant's expulsion was a compelling social necessity.

58.   The Government submit that there has been no interference with

the applicants' family life, since there has never been any family life

between them. Both before and after her stay in the Netherlands, the

first applicant has been taken into the family of Mr. Mbemba and

Mrs. Bakangadio, who provide for her care. They have stated to the

Dutch authorities that they do not know whether or not the first

applicant has any living relatives, that they did not know the second

applicant and they were unaware of the document alleged to be the first

applicant's mother's last will as regards the care of the first

applicant. They have further stated that they have accepted the request

of Mrs. Bakangadio's brother to provide for the first applicant, whose

care had initially been entrusted to him by the first applicant's

father.

59.   The Commission notes that, when the first applicant entered the

Netherlands with the second applicant, she was incorrectly mentioned

in the second applicant's passport as being her daughter. The

Commission further notes that the applicants' alleged family

relationship has remained unsubstantiated.

60.   In these circumstances the Commission is of the opinion that the

first applicant's expulsion to Zaïre cannot be regarded as constituting

an interference with the applicants' right to respect for their family

life within the meaning of Article 8 (Art. 8) of the Convention.

      CONCLUSION

61.   The Commission concludes, by 22 votes to 2, that there has been

no violation of Article 8 (Art. 8) of the Convention.

E.    As regards Article 13 (Art. 13) of the Convention

62.   Article 13 (Art. 13) of the Convention provides as follows:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy

      before a national authority notwithstanding that the

      violation has been committed by persons acting in an

      official capacity."

63.   The applicants submit that the President of the Regional Court

only marginally examined the merits of the applicants' request to order

the first applicant's return to the Netherlands before he rejected it

as inadmissible on the ground that the first applicant was a minor and

that her aunt had not been entrusted with the custody over her. They

further submit that, as the Netherlands authorities, contrary to their

normal practice, did not allow the first applicant to await the outcome

of the summary proceedings in the Netherlands, she was deprived of an

effective remedy.

64.   The Government, referring to the Leander case (Eur. Court H.R.,

judgment of 26 March 1987, Series A no. 116), submit that the

applicants had an effective remedy within the meaning of Article 13

(Art. 13) of the Convention, in that they could apply for an

authorisation for temporary stay. Moreover, the applicants had

available an effective remedy before the President of the Regional

Court of The Hague, who, on 4 January 1994, did not reject the

applicants' request for lack of competence but rejected it after having

examined all aspects of the case. The fact that the request was

unsuccessful does not affect the effectiveness of these proceedings.

65.   As regards the fact that the first applicant was not allowed to

stay in the Netherlands pending the summary proceedings before the

President of the Regional Court of The Hague, the Government submit

that, according to Dutch policy in respect of aliens, only persons, who

have already entered the Netherlands, are allowed to await the outcome

of such summary proceedings in the Netherlands. This rule does not

apply to persons who have been refused entry.

66.   The Commission notes that the applicants had access to the

President of the Regional Court of The Hague. It is true that the

President declared the applicants' request for an injunction

inadmissible because the second applicant did not have custody over the

first applicant and thus could not act on the latter's behalf. However,

the President also had regard to the substance of the case (see para.

32 above).

67.   In these circumstances the Commission is of the opinion that the

applicants had an effective remedy available to them within the meaning

of Article 13 (Art. 13) of the Convention.

      CONCLUSION

68.   The Commission concludes, unanimously, that there has been no

violation of Article 13 (Art. 13) of the Convention.

F.    Recapitulation

69.   The Commission concludes, by 20 votes to 4, that there has been

no violation of Article 3 (Art. 3) of the Convention, as regards the

first applicant (para. 55).

70.   The Commission concludes, by 22 votes to 2, that there has been

no violation of Article 8 (Art. 8) of the Convention (para. 61).

71.   The Commission concludes, unanimously, that there has been no

violation of Article 13 (Art. 13) of the Convention (para. 68).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

                                                        (Or. English)

        DISSENTING OPINION OF Mrs. G.H. THUNE AND Mr. I. BÉKÉS

      Unfortunately we are unable to agree with the majority as regards

Article 8 of the Convention as we consider that there has been lack of

respect for the private and family life of the first applicant.

      We do recognise the right of each state to regulate and limit

immigration as well as the difficulties national authorities can be

faced with when children arrive at the border, unaccompanied or

accompanied by adults without parental responsibility.

      However, it also follows from Commission's and Court's case-law

that even if the person concerned would not face any serious risk of

torture or ill-treatment upon arrival in the country to which he or she

is being expelled, the expulsion may entail serious problems which may

raise an issue under the Convention and thereby create an obstacle to

the expulsion as such or require particular protective measures.

      For example we would mention persons with serious health problems

as well as persons dependant on help from other people due to their

young age or particular physical or psychological needs.

      We recall that the present case concerns a young girl, 9 years'

old, whose parents had died. She was left with strangers upon arrival

in the Netherlands and refused a temporary residence permit pending the

outcome of the summary proceedings in which the merits of her case were

to be considered.

      As established by the majority of the Commission, the Dutch

authorities had failed to investigate Francine's personal situation in

Zaïre as well as to take adequate measures in respect of her arrival

there (para. 53 of the Commission's report).

      Having regard to these particular circumstances, we find that the

Dutch authorities have not shown sufficient respect for the private and

family life of the applicant and thus acted contrary to Article 8 of

the Convention.

                              APPENDIX I

                      HISTORY OF THE PROCEEDINGS

Date                        Item

_________________________________________________________________

25.01.94                    Introduction of application

31.01.94                    Registration of application

Examination of admissibility

31.01.94                    President's decision to communicate the

                            case to the respondent Government and to

                            invite the parties to submit observations

                            on admissibility and merits

23.03.94                    Government's observations

30.04.94                    Applicant's observations in reply

06.07.94                    Commission's decision to declare

                            application in part admissible and in part

                            inadmissible

Examination of the merits

07.07.94                    Decision on admissibility transmitted to

                            parties. Invitation to parties to answer

                            questions put by Commission and to submit

                            further observations on the merits

26.09.94                    Government's answers to questions put by

                            Commission and further observations

03.12.94                    Commission's consideration of state of

                            proceedings

09.12.94                    Commission's grant of legal aid

21.02.95                    Commission's deliberations on the merits,

                            final vote and consideration of text of

                            the Report

02.03.95                    Adoption of Report