issued by the Registrar of the Court

ECHR 113 (2022)

31.03.2022

The length of the administrative detention of an under-age child placed with

his parents in the Metz-Queuleu administrative detention centre led to a

twofold violation of the Convention

In today’s Chamber judgment¹in the case of N.B. and Others v. France (application no. 49775/20)

the European Court of Human Rights held, unanimously, that there had been:

A violation of Article 3 (prohibition of inhuman or degrading treatment) of the European

Convention on Human Rights in respect of K.G., who had been an under-age child at the material

time, and no violation of Article 3 in respect of the parents, N.B. and N.G.;

A violation of Article 34 (right of individual petition).

The case concerned the placement in administrative detention for fourteen days of a Georgian

couple and their then eight-year-old child, who had entered France unlawfully and whose asylum

requests had been rejected.

The Court considered that the administrative detention of an eight-year-old child under the

conditions prevailing at the material time in the administrative detention centre where they had

been placed, which had continued for fourteen days, had been excessive in the light of the

requirements of Article 3 of the Convention. Given the child’s young age, the conditions of detention

in the Metz-Queuleu centre and the length of the period of detention, the competent authorities

had subjected him to treatment exceeding the severity threshold of Article 3.

As regards the parents, on the other hand, the Court stated that it had been unable to conclude, on

the basis of the evidence on file, that they had been in a situation that reached the severity

threshold to fall foul of Article 3.

Moreover, having noted that the interim measure adopted by the Court on Friday 13 November

2020 inviting the Government to terminate the applicants’ administrative detention during the

proceedings before it had not been enforced, the Court found that in the absence of any justification

for such non-enforcement, the French authorities had failed to honour their obligations under

Article 34.

Principal facts

The applicants, N.B., N.G. and their son K.G., are Georgian nationals who were born in 1988, 1984

and 2012 respectively. They unlawfully entered France in 2019, and their asylum applications were

rejected. In the framework of their forced removal, the Ardennes Prefecture reserved a flight to

Georgia for 7 November 2020. On 6 November 2020 the Ardennes Prefect issued orders placing N.B.

and N.G. in administrative detention. The applicants refused to board the flight on 7 November

2020, and they were taken back to the administrative detention centre in Metz.

By two orders of 9 November 2020, the judge with responsibility for civil liberties and detention

matters of the Metz District Court authorised the extension of N.B.’s and N.G.’s detention for 28

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

days. By two orders of 12 November 2020, the judge delegated by the First Present of the Metz

Court of Appeal upheld the orders issued by the civil liberties and detention judge.

On 13 November 2020 the Court, having received a request for interim measures under Rule 39 of

its Rules of Court, invited the Government to put an end to the applicants’ administrative detention.

On 20 November 2020 the Government agent informed the Court that the applicants had been

removed to Georgia that very morning.

Complaints, procedure and composition of the Court

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the Convention, the

applicants submitted that their placement in administrative detention had amounted to inhuman or

degrading treatment. Relying on Article 34 (right of individual petition), the applicants complained

that the French authorities had not released them further to the Court’s decision to allow their

request for interim measures aimed at terminating their administrative detention, pursuant to Rule

39 of the Rules of Court.

The application was lodged with the European Court of Human Rights on 13 November 2020.

Judgment was given by a Chamber of seven judges, composed as follows:

Mārtiņš Mits (Latvia), President,

Síofra O’Leary (Ireland),

Ganna Yudkivska (Ukraine),

Lətif Hüseynov (Azerbaijan),

Ivana Jelić (Montenegro),

Mattias Guyomar (France),

Kateřina Šimáčková (the Czech Republic),

and also Victor Soloveytchik, Section Registrar.

Decision of the Court

Article 3

The Court noted that in the present case the under-age applicant had been accompanied by both his

parents for the duration of the administrative detention. It observed that the child’s extreme

vulnerability had been the decisive factor and took precedence over considerations relating to the

status of illegal immigrant of his or her parent.

As regards the criterion of the child’s age, the Court noted that an eight-year-old child could not be

deemed to have sufficient understanding to grasp the situation he was in, and that he was therefore

in a situation of extreme vulnerability.

As for the criterion of conditions of administrative detention, the Court noted that the Metz-

Queuleu centre was one of those authorised to accommodate families.

The Court had already noted that the accommodation conditions in the Metz-Queuleu

administrative detention centre were insufficient on their own to reach the severity threshold for

the applicability of Article 3. It reaffirmed that beyond a brief period of administrative detention, the

repetition and accumulation of the effects engendered in particular at the mental and emotional

level by deprivation of liberty would necessarily have harmful consequences for a young child,

exceeding the above-mentioned threshold. In that connection, the time factor took on particular

significance.

The Court reiterated that the parents’ conduct, that is to say their refusal to board the flight, was not

decisive for whether the severity threshold had been crossed with regard to the under-age child.

The Court considered that the administrative detention of an eight-year-old child in the conditions

prevailing at the material time in the administrative detention centre where they had been placed,

which had continued for fourteen days, was excessive in the light of the requirements of Article 3 of

the Convention.

It further noted, in the light of the overall reasoning of the orders of 9 November and 12 November

2020, that the judge with responsibility for civil liberties and detention matters of the Metz District

Court disregarded the presence of K.G. and his status as an under-age child, and that the judge

delegated by the First President of the Metz Court of Appeal had taken insufficient account of that

status, even though the last indent of Article L. 551-1 (III) bis of the Code regulating the entry and

residence of aliens and asylum-seekers provided that in such matters “the best interests of the child

must be the primary consideration”.

The Court was able to conclude that given the child’s young age, the conditions of detention in the

Metz-Queuleu centre and the length of the period of detention, the competent authorities had

subjected him to treatment exceeding the severity threshold of Article 3 of the Convention.

There had therefore been a violation of Article 3 in respect of the minor K.G.

As regards the parents, the Court noted that the adult applicants’ complaint concerning their

suffering in the administrative detention centre had not been substantiated. It acknowledged that

the administrative detention of parents with their child could have created a feeling of

powerlessness and caused them distress and frustration, but it had been unable to conclude, on the

basis of the evidence on file, that they had been in a situation attaining the severity threshold to fall

foul of Article 3 of the Convention.

There had therefore been no violation of Article 3 in respect of the applicants N.B. and N.G.

Article 34

The respondent Government had been informed of the interim measure indicated by the Court on

Friday 13 November 2020 at 6.33 p.m. In its letter the Court had pointed out that the duty judge had

decided to ask the Government, pursuant to Rule 39 of the Rules of Court, to put an end to the

applicants’ administrative detention for the duration of the proceedings before the Court. On

Monday 16 November 2020 the Ordre de Malte France, an association supporting the applicants,

had reported to the Court that the interim measure indicated had not been executed. On Friday 20

November 2020 the Government informed the Court that the applicants had been removed that

very morning, thus putting an end to their administrative detention.

The Court emphasised that in his order of 19 November 2020, the urgent applications judge of

Nancy Administrative Court had held that the Ardennes Prefect had not relied on any compelling

reason of public order – which the Court stated did not constitute a circumstance capable of

justifying a refusal to execute an interim measure – or on any objective obstacle preventing the

French Government from complying with the interim measure indicated by the Court.

In the absence of any justification for the non-enforcement of the interim measure, the Court

concluded that the French authorities had failed to honour their obligations under Article 34. There

had therefore been a violation of Article 34 of the Convention in respect of the applicants.

Just satisfaction (Article 41)

The Court held that France was to pay the applicants 5,000 euros (EUR) in respect of non-pecuniary

damage.

The judgment is available only in French.

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