Marius Reikerås søkbare artikkel arkiv
European Court of Human Rights
Council of Europe
67075 Strasbourg - Cedex
France
ECHR Fax: 00 33 3 8841 27 30
Bergen, September 15th, 2010
URGENT REQUEST FOR INTERIM MEASURES IN ACCORDANCE WITH RULE 39 OF THE ECHR And Application to the European Court of Human Rights
T L, p. nr.xxxxxxxxxxx,
H L.p. nr. xxxxxxxxxxx,
M L p.nr. xxxxxxxxxxx.
v.
NORWAY
1. INTRODUCTION
The case originates in an application against the Kingdom of Norway lodged with the Court for the Protection of Human Rights and Fundamental Freedoms.
The applicants are represented by Marius Reikerås, I am a human right advisor, practising in Bergen.
We respectfully request that you bring to the attention of the European Court of Human Rights this urgent request for interim measures against Norway in accordance with Rule 39 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
2. BACKGROUND FOR THIS REQUEST
The facts
The County Council in Oslo and Akershus (Fylkesnemnda) decided on the 4.th of February 2010, to bring M into state custody.
The state action would, according to the decision, take place with immediate effect.
The state had without discretion, decided that the applicants were unfit as parents.
I want to emphasize that there has been no talk of violence, abuse, intoxication, or other physical or mental abuse.
The applicants panicked and fled to H's mother in X country.
When M was born, she became a X citizen and she has X citizenship and passport.
She has now started school, was enrolled as a resident in X and is, as mentioned, a X citizen.
The Child Welfare Services in Norway was informed about this, and was told that they did not come back to Norway.
Before she started school, she was tested and the school found out that she needed special educational needs.
After a few days, the police came to their door, along with child welfare, and asked for the applicants passports.
The child welfare in Norway had summoned them to court in X on June 3rd.
The judge called the X child welfare and said that the passports had to be withdrawn, but that they were allowed to move freely within ‘Xs borders.
The X child welfare system had authority to decide where M would be.
It was decided that she should stay with her family.
The Norwegian child welfare case went to court in X on 22.6.and 8.7.2010. The X child welfare system was present.
The applicants won the case and received their passports back.
On the 27.8.2010, they received letters from Norway, saying that it was issued arrest warrants for the applicants in Norway and that they were requested extradited from X.
The applicants met for the Supreme Court on 13.9.2010.
Meanwhile, a judge tried to negotiate a solution proposing that the family was living in X to 2012 under the supervision of the X child welfare system.
The case was sent from the Ministry of Justice of X to the Ministry of Justice in Norway on 07.09.2010, with a deadline for reply within the working end on 10.9.2010.
There was no answer.
During the hearing on 13.9.2010, the Norwegian state clearly told that they did not want to cooperate, and that any negotiated solution was denied.
M has clearly expressed that she wants to stay in X country with her family.
We have a medical certificate saying that she should not be moved from the family in X to foreign people in Norway.
3. Violation OF THE EUROPEAN CONVENTION
Violations of Article 3
The application raises issues under Articles 3, 8, 6 and 13 of the Convention. The latter is related to the fact that the applicants did not have an effective remedy for their complaints before being potentially sent back to Norway.
Article 3 makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention, shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe (Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 78).
The Convention case-law establishes that extradition, expulsion or deportation by a Contracting State, may engage their responsibility where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman and degrading treatment or punishment in the country to which he or she was returned
The applicants are aware that in order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions, 1997-VIII, § 55).
It is clearly harmful to force M to move to Norway.
She is very clear that she does not want this. What she wants is to be with his family.
A removal against her will, will clearly violate articles 3 and 8.
Violations of Article 8
Forcing M to Norway would contravene with Article 8 of the Convention.
The essential object of Article 8, is to protect the individual against arbitrary interference by public authorities,
This means the positive obligations inherent in effective "respect" for family
In the case of B. v. UK (Application no. 9840/82) 8 July 1987, the following stated in premise 60 ff:
"A. General principles
60. The mutual enjoyment by parent and child of Each Other's company constitutes a fundamental element of family life. Further More, the natural family relationship is not terminated by reason of the fact That the child is overtaken intonation public care. It Follows - That the Authority's Decisions resulting from the procedures that the issue amounted two interference with the applicant's right two respect for family life here.
61. According to the Court's Established case-law:
(A) an interference with the right two respect for family life entail a violation of Article 8 (art. 8) unless it was "in accordance with the law," Had an aim or AIMS That is Legitimate or are under Article 8 § 2 (art. 8-2) and was "Necessary in a Democratic society" for the aforesaid aim or AIMS (see notably, mutatis mutandis, the Gillow Judgement of 24 November 1986, Series A no. 109, p. 20, § 48) ; "
The County Board is making decisions contrary to Article 6 and 8 of the Convention.
The County Board for Child Welfare and Social Affairs was established on 1 January 1993. There are currently twelve county boards; each county board covers one or two counties. The County Council is a government body in academic matters and has an independent position in relation to the ministry and the county.
The County Council gives far-reaching decisions, which undoubtedly affect the individual's rights and duties.
Rights and obligations that are guaranteed under the ECHR, Article 6, paragraph 1
In NOU 2005: 09 under “Resource Use and rule of law in the county committees for social affairs” is said the following:
"6.4 Fair trial
The right to a fair trial is found in the various international human rights instruments.
The focus here will be held at the European Convention on Human Rights Article 6 (1).
The provision is not directly applicable to children and social committees. It is sufficient that the legal test of the child and the social committee's decision is in accordance with the requirements of the provision. "
The government has therefore drawn the conclusion that the ECHR does not require compliance with Article 6 (1) for a first body like the County Board, because the decisions are subject to full review by ordinary courts that meet Convention requirements.
This it is not durable.
In other decisions of the European Court of Human Rights, this has been invoked in vain from the state side,
A particularly thorough discussion of the problem is found in the Cubber, Series A no. 86 para 31-33.
The case, which was against Belgium, came in brief question whether Article 6 (1) was violated in a criminal investigation in which the judge in the case later participated as a judge in the first instance.
ECHR said that Article 6 (1) must be met even at first instance treatment with the following supporting statement:
"Article 6 para. 1 (art. 6-1) concern primarily courts of first instance;
What are the substantive requirements that must be set specifically for that body to be a Court, are emphasized including Sramek, Series A no. 84 para 36:
"36 Under Austrian law, the Regional Authority is not classified as one of the courts of the respondent State. For the Purposes of Article 6 (art. 6), however, it comes within the concept of a "tribunal" in the substantive sense of this expression: its function is two determine matters within its Competence on the basis of rules of law, following proceedings conducted in a prescribed bracing (see paragraph 71 of the Commission's report and, mutatis mutandis, the Campbell and Fell Judgement of 28 June 1984, Series A no. 80, p. 39, para. 76). "
This has been clarified in some early decisions saying that the agency "must process a judicial character," or similar statements, as in Neumeister, Series A no. 8 para 24. r
VIOLATION OF ARTICLE 13
Article 13 of the Convention, guarantees availability at the national level to enforce the Convention rights and freedoms. The purpose is to avert violations before they materialize and thus are made irreversible.
The case Between Conker v. BELGIUM (no. 51564/99) of 5 February 2002, illustrates this:
"79 The Court considers the notion of an effective remedy under Article 13 requires the remedy may prevent the execution of measures that are contrary ti the Convention and whose effects are potentially irreversible (see, mutatis mutandis, Jabari, cited above, § 50).
Consequently, it is inconsistent with Article 13 of such measures to be executed before the national authorities garden examined whether they are compatible with the Convention”
Since the decision were not given automatic suspensive effect, the consequences were irreversible.
Serious Harm
Interim Measures are necessary in this instance because of the unambiguous violation of the applicant's human rights already existing and are likely to be even greater.
Separating the family without any valid decision, will constitute a threat of irreparable and serious harm.
For the above reasons we respectfully request that the court immediately indicate Interim Measures that Norway is bound to respect
Bergen, September 15th, 2010
Marius Reikerås
