M.E. v. Greece

The author of the communication is M.E., a national of Greece born in 1991. She submits the application on her own behalf and on behalf of her minor daughter, T.G.I., a national of Greece, born in 2015. The author and her daughter belong to the Roma ethnic minority. The author claims that the State Party has violated her rights and the rights of her daughter under articles 7, 9, 10, 14, 17, 23, 26 and 27, read alone and in conjunction with article 2 (1)–(3), of the Covenant. She also claims that her daughter is a victim of a violation of her rights under article 24, read alone and in conjunction with article 2 (1)–(3), of the Covenant. The Optional Protocol entered into force for the State Party on 5 August 1997. The author is represented by counsel.

On 19 July 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, did not grant the author’s request for interim measures, which consisted of a request for the execution of the author’s sentence to be suspended pending appeal and a request that the author and her daughter not be separated from each other before an individualized assessment had been conducted on whether the separation would be in the best interests of the child.

On 7 October 2019, pursuant to rule 93 (1) of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, denied the State Party’s request to examine the admissibility of the communication separately from the merits.

On 18 June 2015, the author was accused of participating in the trafficking and sexual exploitation of a woman in Türkiye. The author claims that the allegations were untrue and that she herself was a victim of trafficking. The author further states that, during her stay in Türkiye, she was perceived as having abandoned her three oldest children, who were handed over to social services by their paternal grandparents.

When the criminal investigation against the author was initiated in Greece, the author was two months pregnant with her youngest daughter, T.G.I. She was granted release from detention on certain conditions, including a bail payment of 5,000 euros, which was later reduced to 2,000 euros. The author could not afford that amount, however, and failed to deposit the payment in time.

On 22 April 2016, an arrest warrant was issued against the author for having failed to make the bail payment. On 4 May 2016, she was arrested and sent to the Eleonas women’s detention facility in Thebes.⁶ Her then 6-month-old daughter was brought to the facility to live with her, as under domestic regulation a child may stay with his or her mother in a detention facility until he or she turns 3.⁷

6. The author notes that the detention facility where she was held has a special section for mothers with children, where the mother and baby have their own cell, in a protected wing for mothers detained with children. ↩
7. The author notes that article 13 of the Correctional Code reads as follows: “3. A special area of the [detention] facility or department in which they are detained is adapted to accommodate the detained mothers who have their children, who are up to 3 years old, with them. Children over 3 years of age are admitted to childcare institutions that operate under the supervision of the Ministries of Health and Welfare and Labour and Social Security in cases where the children lack the appropriate family environment, at the discretion of the competent judicial officer and after hearing the parents.” ↩

On 22 June 2017, the Rodopi Criminal Court of First Instance sentenced the author to 16 years’ imprisonment.⁸ When the sentence was handed down, the author immediately requested that her sentence be suspended pursuant to article 497 (4) of the Code of Criminal Procedure, on the grounds that she was a mother with a baby. She notes that, under article 497, such a suspension can be granted if the defendant is deemed to not be dangerous or at risk of absconding, or if there is no credible fear that the defendant may commit another criminal offence. If the court finds that prolonging detention may cause serious or irreparable harm for the defendant or a third party, the execution of the first instance sentence must be suspended. The author’s request for suspension was denied, however. On 28 August 2018, the author lodged a second request for suspension under article 497 (7) of the Code of Criminal Procedure with the second instance court, requesting that her sentence be suspended until the hearing at second instance of her appeal. On 17 October 2018, the Court denied the author’s request, as it deemed that she would be at risk of absconding if granted release pending the appeal. The Court found that restraining measures did not suffice to ensure her appearance before the court at second instance and that the author had not substantiated the argument that the execution of the sentence would cause her or her family disproportionate or irreversible harm. The author notes that she was not represented during these proceedings and that she was not present when the decision was rendered, as, under domestic legislation, a defendant requesting a suspension is not transferred to the court for the hearing when he or she is being detained outside the competent court’s area, as was the case for the author. She further notes that, given that there are no women’s prisons in northern Greece where the proceedings in her case took place, women are usually not able to participate in such court hearings.⁹ The author notes that requests for a sentence to be suspended under article 497 of the Code of Criminal Procedure are not subject to appeal, but a new request based on new information can be submitted two months after a previous decision on the matter.

8. See para. 4.3 below. ↩
9. The author notes the exception to this being if the defendants are detained in the Korydallos or Divata prisons. ↩

On 19 October 2018, the author’s daughter turned 3. Since the author was barred until 3 December 2018 from submitting a new request for her sentence to be suspended, she requested that the prison authorities allow her daughter to remain in the detention facility with her until her request was re-examined. Despite the absence of official approval, her daughter remained with her in the facility during that time. On 16 November 2018, the author was allowed to submit another request for her sentence to be suspended under article 497 (7) of the Code of Criminal Procedure. The author argued that the separation of mother and daughter and the institutionalization of the latter would cause them disproportionate and irreparable harm.¹⁰ She also submitted medical certificates to the court indicating that she had suffered from panic attacks and low blood pressure because of the stress associated with the potential separation from her child. This request also included arguments claiming a violation of the rights of the author and her daughter under articles 1, 3, 5 (1) and (4), 6 (1) and (2), 8, 13, 14 and 17 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), as well as under the Convention on the Rights of the Child. The author notes that, when making this request, she had been able to retain counsel to represent her before the Court and was supported by a local nongovernmental organization; however, as was the case with her first request, she was not present in court when her request was considered. On 3 December 2018, the court again rejected the request for suspension. The author claims that there was no individualized assessment of the possible consequences for her and her daughter that could arise from their separation and the institutionalization of her daughter. She further claims that there was no other domestic remedy available to them, as at the time of the submission of her complaint, the hearing on her appeal against her conviction and sentence was scheduled for 15 May 2020, almost three years from the first instance judgment and that, until said hearing, she had no other avenue through which to address her claims.

10. During these proceedings, the author argued that she had never been accused of any criminal act prior to her conviction, that she was a victim, not a perpetrator, of the acts of which she was being accused, that there was no reason to believe that she might commit a criminal offence upon release, that she had a permanent address and that she was being supported by credible people who were willing to testify. ↩

On 28 January 2019, the author submitted a request for interim measures to the European Court of Human Rights regarding her imminent separation from her daughter. On 29 January 2019, the request was rejected as falling outside the scope of rule 39 of the rules of the Court.¹¹ On the same day, the author sent the Court another letter claiming that she and her daughter were at real and imminent risk of serious and irreparable harm if they were separated from each other. On 30 January 2019, the Court confirmed its previous decision. On 27 April 2019, the author informed the Court that, in the light of the rejection of her application for interim measures, she no longer wished to lodge an application before the Court.

11. Application No. 5919/19. ↩

The author claims that she and her daughter are victims of a violation by the State Party of their rights under articles 7, 9, 10, 14, 17, 23, 26 and 27, read alone and in conjunction with article 2 (1)–(3), of the Covenant. She also claims that her daughter is a victim of a violation of her rights under article 24, read alone and in conjunction with article 2 (1)–(3), of the Covenant.

The author claims that her daughter’s rights under article 7 of the Covenant would be violated by the State Party forcibly separating her from her mother and placing her in a childcare institution, an action she claims would “constitute inhuman and degrading treatment resulting in extremely severe and perhaps irreparable damage”. She claims that the separation would be decided without an individualized assessment of the best interests of her daughter and without any meaningful effort from the authorities to exhaust the possibility of non-separation. The author claims that developmental delays are widely documented in children placed in institutions and that they are at higher risk of developing behavioural or psychological issues.

The author claims to be vulnerable on several grounds: her status as a victim of trafficking, as a single mother, as a prisoner, as a person of low socioeconomic status and as a woman of Roma ethnic origin; her illiteracy; and her acute poverty. She claims that the cumulative effect of said factors has exposed her to a real risk of inhuman or degrading treatment in violation of article 7 of the Covenant and that the State Party has ignored her vulnerability.

The author claims that the State Party has violated her and her daughter’s rights under article 9 (1), (3) and (4) of the Covenant, as she claims that they have been exposed to a manifest infringement of their rights to liberty and security of person. She claims that her prolonged detention while awaiting her hearing on appeal, scheduled almost three years from the first instance judgment, and the rejection of her requests for her prison sentence to be suspended under the Code of Criminal Procedure were arbitrary. She also claims a violation of her rights under article 9, as she was not able to be present at the hearings on her requests for suspension, owing to the location of the prison at which she was held. She further claims that the decision to separate her from her daughter and to place her daughter in an institution is also arbitrary, as the State Party authorities should have ensured that more lenient alternatives were in place.

The author claims that the State Party has violated her and her daughter’s rights under article 10 (1) of the Covenant. She contends that mothers with infants should not be kept in a prison context, but, where detention is deemed to be absolutely necessary, detention conditions should be in accordance with international standards and “in structures that resemble conditions of freedom”. She claims that, in the present case, the State Party has failed to meet said standards.

The author claims a violation of her rights under articles 14 (1)–(2) and (3) (c)–(d) of the Covenant, as she claims that there was an undue delay in scheduling a hearing on her appeal, which took place almost three years after the first instance judgment. The author also claims a violation of her rights under article 14, as she was not able to be present at the hearings of her requests for her prison sentence to be suspended, owing to the location of the prison at which she was held. She also claims that it was disproportionately difficult for her to find legal counsel to represent her and that she was not informed of her right to legal aid during the proceedings. Furthermore, she claims that the court that rejected her request that her sentence be suspended breached her rights under article 14 (2) (the right to presumption of innocence) by finding that she would be at risk of absconding in order to “try to avoid the consequences of her actions”.

The author claims that her separation from her daughter would amount to arbitrary interference in their right to family life, in violation of their rights under articles 17 (1) and (2) and 23 (1) and (4) of the Covenant. She further claims that the rejection by the domestic courts of her requests that her sentence be suspended further violated her and her daughter’s right to family life under the Covenant.

The author claims that, by failing to hear her daughter during the domestic proceedings and give priority to her best interests as a child and protect her from harm, the State Party authorities violated her daughter’s rights under article 24 of the Covenant.

The author claims that she was subjected to pretrial detention because of her ethnicity, illiteracy and social disadvantages, as well as the State Party’s failure to observe that she was a victim of trafficking, not a perpetrator. Furthermore, she claims that the rejection of her request for suspension of her sentence on the vague grounds that she was deemed to be at risk of absconding amounted to a violation of her and her daughter’s rights under article 26 of the Covenant.

The author submits that the removal of her daughter to an institution, where she cannot be raised according to the customs and culture of the Roma community, would impair her daughter’s right to enjoy her culture and the author’s own right to enjoy raising her child in conformity with her culture.

The author claims a violation of her and her daughter’s rights under article 2 (1)–(3) of the Covenant. She notes that the claims relating to article 2 are invoked as a separate violation, but also invoked in conjunction with her claims under articles 7, 9, 10, 14, 17, 23, 24, 26 and 27 of the Covenant.

The author claims that her and her daughter’s rights under article 2 (1) of the Covenant were violated, as the lack of protection of their rights took place because of their distinct cultural identity, their ethnic and sociocultural minority status, their sex and gender, the daughter’s status as a minor and the author’s status as a convicted person.

The author further claims that the State Party has not adopted the measures necessary for the protection of mothers and young children who are at risk of finding themselves in prison, in violation of article 2 (2) of the Covenant. Finally, she claims that she and her daughter did not have access to an effective remedy, in violation of their rights under article 2 (3) of the Covenant.

On 1 July 2019, the State Party submitted its observations on the admissibility of the communication. It submits that the communication should be found inadmissible as manifestly unfounded under article 2 of the Optional Protocol.

The State Party notes that the Committee has repeatedly recalled that it is not to substitute its views for the judgment of domestic courts on the evaluation of facts and evidence in a case, unless the evaluation is manifestly arbitrary or amounts to a denial of justice. It argues that, if a jury or court reaches a reasonable conclusion on a particular matter of fact in the light of the evidence available, the decision cannot be held to be manifestly arbitrary or to amount to a denial of justice. The State Party submits that, in the present case, the finding that the requirements under domestic law, namely article 497 (7) and (8) of the Code of Criminal Procedure, were not satisfied constitutes a matter of factual assessment. It further argues that assessment of whether the placement of a child in a childcare institution outside a prison environment would cause the child or her mother irreparable harm also constitutes a matter of factual assessment. It argues that, in the present case, the competent national courts rejected the author’s claims in fully reasoned judgments, having duly examined the evidence produced by the author. It submits that the communication should therefore be declared inadmissible under article 2 of the Optional Protocol.

The State Party notes that, at the time of the submission of its observations, the author was detained at the Eleonas women’s detention facility in Thebes following the judgment of the Rodopi Criminal Court of First Instance, which unanimously sentenced the author to 16 years’ imprisonment and a fine of 51,000 euros, finding her guilty of the offence of human trafficking committed by profession and jointly and plain accessory to rape committed repeatedly, as well as the misdemeanour of pandering committed jointly and by profession. The Court did not find any mitigating circumstances in the author’s case and did not grant suspensive effect to her appeal. In its observations, the State Party further notes that the hearing on the author’s appeal before the Court of Appeal of Thrace had initially been scheduled for 5 May 2020, but had been moved to 8 October 2019.

The State Party notes that, as concerns the domestic proceedings, the author appeared before the investigating judge of Alexandroupoli on 18 June 2015 and was released under restraint orders. Upon her request, bail was reduced from 5,000 to 2,000 euros on 15 July 2015. As she failed to make the bail payment, the investigating judge, with the consent of the prosecutor, ordered her detention on remand. The author gave birth to her daughter on 19 October 2015, was arrested on 4 May 2016 and was detained at the Eleonas detention facility as of 13 May 2016. The detention order was regularly reviewed.

The State Party notes that the author lodged two requests with the Court of Appeal of Thrace under article 497 (7) of the Code of Criminal Procedure for her sentence to be suspended. It also notes that, as the author was detained outside the area in which the court is situated, she was not present at the oral hearings, as provided for by article 497 (9) (b) of the Code of Criminal Procedure. However, the author was entitled to appoint an attorney and to submit evidence and a detailed memorandum containing her claims. The State Party notes that, on 26 June 2018, the author authorized a counsel to represent her. On 28 June 2018, said counsel submitted a request for her sentence to be suspended. A hearing on the request was scheduled for 6 September 2018; however, the author’s attorney did not submit a memorandum detailing her claims or attend the hearing. On 16 November 2018, the same counsel submitted a second request for suspension. A second hearing was scheduled for 3 December 2018, where the author was represented by her appointed counsel. During that hearing, a witness called by the author offered to provide the author with accommodation and employment. However, the judges found his statement ambiguous and unconvincing. The State Party argues that, in the light of the specific features of the author’s offences, her lack of permanent residence and the absence of a friendly family environment and essential care for her daughter, it was concluded that, if released, the author could again be involved in trafficking in persons, could abscond and not appear before the second instance court, and may not serve her sentence.

The State Party argues that the rejection of the author’s request that her sentence be suspended did not cause irreparable harm to the author or her daughter. The Eleonas detention facility was built in 2008 to European standards. The State Party notes that the author was placed with her child in a fully furnished and equipped personal cell.

The State Party notes that, under domestic legislation, when a child placed in a detention facility with his or her mother turns 3, the child has to be placed with suitable relatives and, if this is not an option, which was the case of the author, with a childcare institution supervised by the Ministry of Welfare. It submits that removing the author’s daughter from the detention facility at 3 years of age and placing her in a childcare institution was in the daughter’s best interest. It states that, on 25 February 2019, the preparation for the daughter’s transfer began; a social worker and a psychologist visited the author and her daughter twice a month during this period. The State Party contends that the author knew from the beginning where her daughter would be accommodated, that she would be entitled to contact her daughter every day and that her daughter would visit her in prison once a month, as per common practice. The State Party states that, on 13 May 2019, the daughter was transferred to an excellent childcare institution in Melissia, Attica. Following the daughter’s removal, the author was moved to an eight-person unit and was given access to an educational programme. The State Party states that the daughter was calm during the process and adapted to life at the childcare institution at a normal pace. The daughter had daily contact with the author, who, if she had concerns regarding her daughter, could have asked for counselling by a psychologist. The State Party states that, during their first meeting after the separation on 10 June 2019, the daughter was very affectionate with her mother and left calmly. It notes that the mother seemed relieved that their first meeting after separation had gone well and the State Party emphasized that it considers that contact with the author is beneficial to her daughter. It argues that the placement of the daughter in a childcare institution was in her best interest and will not alienate her from her mother. In its observations, the State Party also reported that a new Criminal Code would enter into force on 1 July 2019,¹² which would permit the author to ask to serve the remainder of her sentence at home.

12. The State Party refers to Law No. 4619, which in chapter 6 (I), article 105 provides as follows: Home detention. (1) A person sentenced to a custodial sentence of no more than 15 years, who is over 70 years of age, may serve the sentence or the remaining sentence at their home, unless the Court, by specific reasoning, finds it is absolutely necessary that the sentence be served in a detention facility in order to prevent the commission of other offences of similar gravity… (2) The provision laid down in the preceding paragraph shall also apply, irrespective of sentence, to mothers who have custody of minor children younger than 8 years of age. (Government Gazette A 95/11.6.2019). ↩

On 19 September 2019, the State Party observed that the Judicial Council of Rodopi had issued a decision to commute the author’s custodial sentence to home detention, in accordance with the amended Criminal Code. By the same decision, the Council imposed a condition that the author attend monthly sessions with a social assistant in her place of residence.

On 6 September 2019, the author submitted her comments on the State Party’s observations on admissibility. The author notes that amendments to the Criminal Code and the Code of Criminal Procedure entered into force on 1 July 2019. She notes that article 105 of the Criminal Code thus seems to ensure that the majority of convicted mothers would serve their sentence under home arrest. She argues, however, that the requirement for a mother to have custody in order to qualify for home arrest poses problems, as many mothers do not retain custody, owing to being imprisoned.

The author notes that, on 3 July 2019, she submitted a petition for her sentence to be modified in accordance with article 105 of the amended Criminal Code. On 8 August 2019, the Judicial Council ordered her release, and she was due to serve the remainder of her sentence under home detention, in Kavala, northern Greece.

At the time of the submission of her comments in 2019, the author stated that, after her release, she had not received any information as to her daughter’s situation, including as to who would be responsible for coordinating their reunification, which documents she would need to procure and how long the procedure would take. The author’s daughter remained at the childcare institution in Melissia, Attica, which is located 637 km from the author’s residence.

The author also contends that, although the prosecutor’s original proposal for her home detention indicated that she should “be allowed to be outside the house for specific hours of the day in order to respond to the needs of her occupation”, the Judicial Council omitted from its judgment any clarification regarding the parameters of her confinement, despite stating that it accepted the prosecutor’s proposal in its entirety. The author claims that this leaves a “de facto interpretative void” in the decision that, she argues, means she cannot leave the residence where she is serving her sentence and as such has to rely on welfare services. Despite this, on 15 August 2019, she was informed by social services that she would not be able to reunite with her child until she could support herself financially. She states that she has thus been forcibly separated from her child for four months.

The author also notes that, on 19 June 2019, she submitted a third request for her sentence to be suspended to the Court of Appeal of Thrace, pursuant to article 497 (7)–(8) of the Code of Criminal Procedure. In this request, she argued that she had provided the necessary safeguards and guarantees, such as certificates proving her permanent residence and occupation and the existence of an environment that would be conducive to her reintegration into society. On 5 September 2019, the Court rejected the request as being “void/irrelevant of subject”. The author claims that home detention is a different matter in legal terms from a suspended sentence and that the grounds for rejecting the request reflected an improper, non-thorough examination of the application, in violation of article 14 of the Covenant.

The author further contends that the State Party’s observations portray her in a biased light, describing her as guilty of the crimes of which she is accused, despite her appeal pending at second instance, in violation of the right to presumption of innocence. She argues that the State Party’s mistrust of her comes from her background as a Roma single mother.

On 7 February 2020, the State Party submitted its observations on the merits of the complaint. The State Party reiterates its argument that the placement of the author’s daughter in a childcare institution was in the daughter’s best interests and did not amount to a violation of the author’s or her daughter’s rights under the Covenant. It states that the author’s daughter adapted to the change in environment at a normal pace, had daily contact with her mother and received counselling from a psychologist and that no complaint was raised about any alleged distress caused to the daughter owing to the separation from her mother. The State Party submits that, consequently, the author has not substantiated the claims raised under article 7 of the Covenant.

Regarding the author’s claims under article 9 of the Covenant. The State Party submits that the author’s arrest was in accordance with procedures established by law. She was arrested after an arrest warrant had been issued and she was informed of the reason for her arrest. She was detained for a period of fewer than 18 months, which is the maximum period of detention under the Code of Criminal Procedure for pretrial detention, she was able to challenge the legality of her detention and its alleged arbitrary character and she had access to legal counsel. In addition, by decision of the Judicial Council of Rodopi on 8 August 2019, the author’s custodial sentence was commuted to home detention. In this connection, the State Party observes that, on 8 October 2019, the Court of Appeal upheld the author’s conviction for the offence of “human trafficking committed by profession and jointly” and sentenced the author to six years’ imprisonment. The State Party submits that, consequently, the author has not substantiated the claims raised under article 9 of the Covenant.

As concerns the claims raised by the author under article 10 of the Covenant, the State Party reiterates its argument that the author has not provided any information substantiating said claims and argues that the author was not subjected to any hardship or constraint other than that resulting from the deprivation of liberty for a criminal offence. It submits that it has fulfilled its obligations under article 10 of the Covenant.

Regarding the author’s claims under article 14 (1) of the Covenant, the State Party argues that the author’s claims are vague and unspecified. It submits that the author’s right to presumption of innocence was respected and that she has failed to substantiate her claims under article 14 (1) of the Covenant. Regarding the author’s claim that the proceedings on appeal in her case were unduly delayed, the State Party notes that the reasonableness of a delay must be assessed in the circumstance of each case, taking into account the complexity of the case, the conduct of the defendant and the manner in which the matter was dealt with by the administrative and judicial authorities. In the present case, the State Party notes that the judgment of the Court of Appeal was rendered on 8 October 2019, two years and four months after the first instance judgment. It submits that this period must be considered reasonable given the complexity of the case. In addition, the author’s requests for her sentence to be suspended under article 497 (7) of the Code of Criminal Procedure were heard within short periods of time. Regarding the author’s claims under article 14 (3) (d), the State Party states that the author was present at trial at both first and second instance and was represented by counsel. The State Party thus submits that the author has not substantiated any of her claims under article 14 of the Covenant.

The State Party notes that the author has claimed a violation of the right to family life under articles 17, 23 and 24 of the Covenant. The State Party reiterates its argument that the placement of the author’s daughter in a childcare institution was in the daughter’s best interests and refers to the information it provided in its observations of 1 July 2019. It also notes that, by decision of the Court of First Instance of Thebes, issued on 6 October 2019, the author’s daughter was reunited with the author on 10 October 2019. The State Party thus submits that it adopted all measures necessary to guarantee the right to family life of the author and her daughter, while affording special measures of protection to the daughter.

Regarding the author’s claims under articles 2, 26 and 27 of the Covenant, the State Party argues that she has not provided any information substantiating those claims. It argues that the author was not subjected to any discriminatory treatment on such grounds as descent, gender or financial situation and that the author did not receive any differentiated treatment.

On 18 June 2020, the author submitted her comments on the State Party’s observations on the merits. The author reiterates her claims that being separated from her daughter caused her daughter severe distress and anguish, and that the daughter is still afraid of losing her mother again. She also reiterates her claim that no individualized assessment of the best interests of the child was made prior to the separation and notes that her daughter was not heard during the proceedings. The author further notes that the separation also caused her to have several panic attacks, which required hospitalization. She has subsequently been diagnosed with an anxiety disorder, which requires medication.

The author also claims a violation by the State Party of the Optional Protocol, as the State Party removed her daughter from the detention facility on 13 May 2019 while the author’s request for interim measures was pending before the Committee.

The author further reiterates her claims under article 9 of the Covenant. She notes that, while she has been released on home detention, this measure nevertheless constitutes a severe restriction of a person’s freedom of movement and there is a lack of support during the home detention, such as an allowance to ensure that the person on home detention can access basic amenities, such as electricity, food and water. She argues that, for this reason, her final request for her sentence to be suspended should not have been rejected on the grounds that she had already been released on home detention, given that the acceptance of such a request would have resulted in a significantly improved situation.

The author reiterates her claims under article 14 of the Covenant and argues that her right to a trial with undue delay was violated due to the delay of the appeal hearing in her case, which she claims is due to the well-known systematic delays in the administration of justice in the State Party. She notes that the European Court of Human Rights has found that a period exceeding two years per instance of jurisdiction is in principle not considered to be a trial within a reasonable time period.¹³ She also argues that she did not take any action that would have caused a delay in the proceedings but, on the contrary, requested that her hearing be prioritized in view of her situation. She further notes that no further investigative step was taken after the judgment of the court of first instance and that, as such, the delay in hearing her appeal cannot be considered justified.

13. The author refers to European Court of Human Rights, Michelioudakis v. Greece, Application No. 54447/10, Judgment, 3 April 2012, paras. 19, 20 and 27. ↩

The author finally reiterates her claims under articles 17, 23 and 24 of the Covenant. She confirms that she was reunited with her daughter on 10 October 2019, but argues that there was an undue delay of two months owing to her not being able to travel in order to pick up her daughter as she was under home detention.

On 2 August 2023, the State Party submitted further observations on the complaint. It reiterates its submission that the author has failed to substantiate her claims for the purpose of admissibility. Regarding the author’s claim that she could not be present during the hearings on her requests for her sentence to be suspended, the State Party notes that she was entitled to appoint a counsel of her choice to represent her before the Court and to submit a detailed memorandum of her claims, as well as to produce or propose any means of evidence to corroborate her claims during the proceedings.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the author’s assertion that she has exhausted all available domestic remedies by requesting that her sentence be suspended under article 497 of the Code of Criminal Procedure. It further notes that the State Party has not identified any other domestic remedy that would have been available to the author. The Committee therefore considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from considering the present communication.

The Committee notes the author’s claim that she and her daughter are victims of a violation by the State Party of their rights under articles 7, 9, 10, 14, 17, 23, 26 and 27, read alone and in conjunction with article 2 (1)–(3), of the Covenant, and her claim that her daughter is also a victim of a violation of her rights under article 24, read alone and in conjunction with article 2 (1)–(3), of the Covenant. It notes the State Party’s submission that the author’s claims should be found to be inadmissible as being insufficiently substantiated under article 2 of the Optional Protocol.

The Committee notes that, in addition to invoking article 2 (1)–(3), as read in conjunction with articles 7, 9, 10, 14, 17, 23, 24, 26 and 27, the author has also invoked article 2 (1)–(3) of the Covenant as a separate violation. The Committee recalls that the provisions of article 2 of the Covenant lay down general obligations for States parties, which cannot by themselves give rise to a claim in a communication.¹⁴ This part of the communication is therefore inadmissible under article 3 of the Optional Protocol. The Committee understands the author’s remaining claims under article 2 to refer to article 2 (3) as being invoked in conjunction with the author’s claims under articles 7, 9, 10, 14, 17, 23, 24, 26 and 27 of the Covenant, and will thus examine said claim in conjunction with the substantive articles invoked.

14. See, for example, Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 7.4. ↩

The Committee notes the author’s claims that her and her daughter’s rights under article 7 of the Covenant were violated by the State Party forcibly separating them and placing her daughter in a childcare institution, which caused them stress and anxiety. The Committee further notes the author’s claims that the State Party has violated her and her daughter’s rights under article 10 of the Covenant by placing them in conditions of detention that she claims fail to meet international standards. The Committee also notes the State Party’s argument that the Eleonas detention facility, where the author was placed together with her daughter, was built in 2008 according to European standards, that the author and her daughter were placed in a fully furnished and equipped personal cell in a separate wing for mothers with children, and that the removal of the author’s daughter from the detention facility when she turned 3 years of age was facilitated by the assistance of a social worker and a psychologist. The Committee notes that the author has not provided any further specific information or argumentation to substantiate her claims under articles 7 and 10, read alone and in conjunction with article 2 (3), and it finds the claims inadmissible for lack of sufficient substantiation under article 2 of the Optional Protocol.

The Committee notes the author’s claims that the State Party has violated her and her daughter’s rights under article 9 (1), (3) and (4) of the Covenant, as she claims that the rejection of her requests for her prison sentence to be suspended amounted to arbitrary detention in violation of her rights under article 9 of the Covenant. The Committee further notes the State Party’s submission that the author’s arrest was in accordance with procedures established by law after an arrest warrant had been issued, that she was informed of the reason for her arrest, that she was able to challenge the legality of her detention and its alleged arbitrary character and that she had access to legal counsel.

The Committee recalls that the term “detention” refers to the deprivation of liberty that begins with arrest and continues in time from apprehension until release.¹⁵ It notes the requirement under article 9 (3) of the Covenant that it shall not be the general rule that persons awaiting trial shall be detained in custody, but release from such custody may be subject to guarantees of appearance, including appearance for trial, appearance at any other stage of the judicial proceedings and, should occasion arise, appearance for execution of the judgment.¹⁶ Regarding pretrial detention, the Committee further recalls the requirements that detention pending trial must be based on an individualized determination that it is reasonable and necessary, taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime.¹⁷ In the present case, the Committee notes that the author’s claims refer to her detention following her conviction at first instance for a serious criminal offence, rather than pretrial detention: a fact to be taken into account in considering the reasonableness of the detention. It also notes that the State Party authorities, in assessing the author’s applications, took her personal circumstances into account, but rejected her requests for her prison sentence to be suspended, as it found the detention necessary to prevent flight. The Committee finds that, in the light of this information, the author has not substantiated her claim that the rejection of her requests for her prison sentence to be suspended was unreasonable or unnecessary and it finds her claim under article 9, read alone and in conjunction with article 2 (3), of the Covenant inadmissible for lack of sufficient substantiation under article 2 of the Optional Protocol.

15. General comment No. 35 (2014), para. 13. ↩
16. Ibid., para. 38. ↩
17. Ibid. See also Hill and Hill v. Spain (CCPR/C/59/D/526/1993), para. 12.3. ↩

The Committee notes the author’s claims of a violation of her rights under articles 14 (1) and (2) and (3) (c) and ( d) of the Covenant, as she claims that there was an undue delay in her hearing on appeal and that she was not able to be present at the hearings on her requests for her prison sentence to be suspended, owing to the location of the prison at which she was held. The Committee further notes the State Party’s argument that the judgment of the Court of Appeal was rendered on 8 October 2019, two years and four months after the first instance judgment, and its submission that this period must be considered reasonable taking into account the complexity of the case, as well as its argument that the author was represented by counsel during her requests for her sentence to be suspended and was provided the opportunity to submit evidence in support of her claims.

The Committee notes that the author’s claim under article 14 (3) (d) is not raised in connection to her trial, in the determination of the criminal charges against her, at which she was present, but to her requests for her sentence to be suspended. It further notes that the author was represented by counsel during her trial, as well as during her requests under article 497 of the Code of Criminal Procedure, and that she was entitled to submit a memorandum outlining her claims for a suspension of her sentence and submit evidence in support of her claims. The Committee notes that the author has not provided any additional information or argumentation as to any further information she would have been unable to present owing to her not being present during the hearings of her requests, either through the memorandum or through counsel. The Committee therefore finds her claims under article 14 (1) and (2) and (3) (d), read alone and in conjunction with article 2 (3), to be inadmissible for lack of sufficient substantiation under article 2 of the Optional Protocol.

The Committee further takes note of the author’s claim that her right to be tried without undue delay under article 14 (3) (c) of the Covenant was violated, as the judgment of the court of appeal was rendered two years and four months after the judgment at first instance. The Committee recalls that what is considered to be an undue delay must be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused and the manner in which the matter was dealt with by the administrative and judicial authorities.¹⁸ In the present case the Committee considers that author has not substantiated that the time elapsed before the hearing on appeal was unreasonable in the circumstances of the case or that the judicial proceedings experienced undue delays. The Committee therefore finds her claims under article 14 (3) (c), read alone and in conjunction with article 2 (3), of the Covenant to be inadmissible for lack of sufficient substantiation under article 2 of the Optional Protocol.

18. General comment No. 32 (2007), para. 35. ↩

The Committee notes the author’s claims that she was subjected to pretrial detention because of her ethnicity, illiteracy and social disadvantages, as well as her claim that the removal of her daughter to a childcare institution, where she cannot be raised according to the customs and culture of the Roma community, amounted to a violation of their rights under article 27 of the Covenant. It notes, however, that the author has not submitted any specific information or argumentation as to said claims. The Committee thus finds the claims inadmissible under article 2 of the Optional Protocol.

The Committee considers, however, that the author has sufficiently substantiated for the purposes of admissibility her claim that her and her daughter’s right to family life was violated by the State Party forcibly separating them and placing her daughter in a childcare institution. Accordingly, the Committee declares the communication admissible as concerns the author’s claims under articles 17, 23 and 24, read alone and in conjunction with article 2 (3), of the Covenant and proceeds to its examination on the merits of said claims.

The Committee finally notes that the author has invoked a claim of a violation of the Optional Protocol, as the State Party removed her daughter from the detention facility on 13 May 2019, while the author’s request for interim measures was pending before the Committee. The Committee observes, however, that in the present case the author’s request for interim measures was denied by the Committee.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the author’s claim that her and her daughter’s right to family life was violated by the State Party forcibly separating them and placing her daughter in a childcare institution. It notes her claims that the separation was decided on without an individualized assessment of the best interests of her daughter and without any meaningful effort from the authorities to exhaust the possibility of non-separation. It notes the State Party’s argument that the placement of the author’s daughter in a childcare institution was in the daughter’s best interests and facilitated with the assistance of a social worker and a psychologist, and with daily contact between the author and her daughter.

The Committee notes that the author’s claims regarding her and her daughter’s forcible separation raises issues under articles 17, 23 and 24 of the Covenant. It recalls that article 17 provides for the right of every person to be protected against arbitrary or unlawful interference with the right to family life. The term “unlawful” means “that no interference can take place except in cases envisaged by law”¹⁹ and the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.²⁰ Accordingly, any interference with privacy and family must be proportionate to the legitimate end sought and necessary in the circumstances of any given case.²¹ In addition, article 23 recognizes that the family is the natural and fundamental group unit of society and is entitled to protection by the State and, similarly, that the possibility to live together implies the adoption of appropriate measures to ensure the unity or reunification of families, particularly when their members are separated.²² The Committee further recalls that, under article 24, every child has a right to special measures of protection because of their status as a minor.²³ The principle that the child’s best interests shall be a primary consideration in all decisions affecting the child forms an integral part of every child’s right to measures of protection, as required under article 24 (1).²⁴ In this connection, the Committee observes that, given the gravity of the impact on the child of separation from his or her parents, such separation should only occur as a measure of last resort, when the child is in danger of experiencing imminent harm or when otherwise necessary and that separation should not take place if less intrusive measures could protect the child.²⁵

19. General comment No. 16 (1988), para. 3. ↩
20. Ibid., para. 4. ↩
21. Toonen v. Australia (CCPR/C/50/D/488/1992), para. 8.3. ↩
22. General comment No. 19 (1990), paras. 1 and 5. ↩
23. General comment No. 17 (1989), para. 4; and Mónaco de Gallicchio and Vicario v. Argentina (CCPR/C/53/D/400/1990), para. 10.5. ↩
24. Bakhtiyari et al. v. Australia (CCPR/C/79/D/1069/2002), para. 9.7. ↩
25. Committee on the Rights of the Child, general comment No. 14 (2013), para. 61; see also Committee on the Rights of the Child, B.J. and P.J. v. Czechia (CRC/C/93/D/139/2021), para. 8.3, and A.M. and E.P. v. Switzerland (CRC/C/98/D/153/2021), paras. 9.3–9.7. ↩

The Committee further recalls that, under rule 49 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), decisions to allow children to stay with their mothers in prison or detention facilities must be based on the best interests of the children. It further recalls that, in accordance with rule 52 of the Bangkok Rules: decisions as to when a child is to be separated from a mother who is serving a custodial sentence shall be based on individual assessments and the best interests of the child within the scope of relevant national laws; the removal of the child from prison shall be undertaken with sensitivity, only when alternative care arrangements for the child have been identified; and after children are separated from their mothers, women prisoners shall be given the maximum possible opportunity and facilities to meet with their children, when it is in the best interests of the children and when public safety is not compromised.²⁶ The Committee notes in this regard that viewpoints as to whether children of imprisoned mothers should stay with them in prison, and for how long, vary among specialists, with no consensus.²⁷ Nevertheless, there is general consensus that, in trying to resolve the difficult question of whether to separate a mother from her child during imprisonment, and at what age, the best interests of the child should be the primary consideration.²⁸ Issues to take into account should include the conditions in prison and the quality of care children can expect to receive outside prison, if they do not stay with their mothers. This principle would imply that prison authorities should demonstrate flexibility and take decisions on an individual basis, depending on the circumstances of the child and family, and on the availability of alternative care options in the community.²⁹

26. See also Council of Europe recommendation CM/Rec(2018)5 of the Committee of Ministers to member States concerning children with imprisoned parents, appendix, paras. 1, 2 and 36–40. ↩
27. United Nations Office on Drugs and Crime, “United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders with their Commentary”, commentary to rules 49–52. ↩
28. Ibid. ↩
29. Ibid. ↩

The Committee notes that in the present case the author’s daughter was moved from the detention facility on 13 May 2019, after having turned 3, in accordance with domestic regulations, and placed in a childcare institution, as no alternative family placement was available. The Committee notes that the separation of the author’s daughter from the author was therefore envisaged by law. The question before it is therefore to assess whether the separation constituted an arbitrary interference with the author and her daughter’s rights to family life under articles 17 and 23 (1) of the Covenant and whether it took into account the daughter’s best interests and right to special measures of protection as a primary consideration, in accordance with article 24 of the Covenant.

The Committee notes in this connection that, at the time of the submission of the complaint, the author was serving a 16-year prison sentence after her conviction for a serious criminal offence, and thus that the interference in the author and her daughter’s family life was in pursuit of a legitimate aim, the protection of the child’s best interest in the context of the enforcement of a prison sentence following a criminal conviction. It notes that the transfer of the author’s daughter from the detention facility was conducted with the author’s prior knowledge and taking the author and her daughter’s individual circumstances into account. The Committee notes that counselling services were provided by a social worker and a psychologist prior to the transfer, that such services were also available to the author and her daughter after the transfer, and that daily contact between the author and her daughter, as well as a monthly visit, was arranged. The Committee further observes that the author and her daughter were reunited after five months, on 10 October 2019, after the author’s prison sentence had been converted to home detention in accordance with the entry into force in July 2019 of the amended Criminal Code, which allowed for mothers with custody of children under 8 years of age to serve their sentence as home detention. Taking the above considerations into account, the Committee concludes that the State Party adequately took into account the principle of the best interests of the child in deciding to separate the author’s daughter from the author by removing the daughter from the detention facility upon her turning 3. The Committee also finds, based on the information on file that the interference in the author and her daughter’s family life was neither unreasonable nor disproportionate in the particular circumstances of their case.

The Committee, acting under article 5 (4) of the Optional Protocol, is therefore of the view that the author’s claims do not reveal a violation of the rights of the author or her daughter under articles 17, 23 or 24, read alone or in conjunction with article 2 (3), of the Covenant.

This separate opinion supports and supplements the conclusion of the Views on communication No. 3597/2019. The case concerns the separation of a child from her mother during detention, with a strong emphasis on the best interests of the child as the basis for the reasoning. It was adopted in the absence of directly analogous precedents in the Human Rights Committee’s jurisprudence. These Views constitute a valuable methodological precedent, explicitly referencing human rights standards – particularly general comments and Views of the Committee on the Rights of the Child – and thus contributes to the harmonization of legal doctrine among human rights treaty bodies. As each treaty was independently drafted and the committees continue to function autonomously, divergent interpretations of similar facts may emerge. This gives rise to fragmentation and forum shopping, both of which are persistent challenges in international law. These risks are particularly evident when the same State is a Party to multiple treaties, such as the Covenant and the Convention on the Rights of the Child, both of which have widespread ratification. The Covenant, like the International Covenant on Economic, Social and Cultural Rights, enshrines rights broadly, making interpretive coherence especially critical for the Human Rights Committee.

Nonetheless, the uncritical reference to jurisprudence from other treaty bodies is not advisable. Each body exercises an independent interpretive mandate, and reflexive cross-referencing may impede the organic development of treaty-specific jurisprudence. When citing external sources, the Committee must assess their compatibility with its own precedents and whether they can be integrated coherently. If the referenced norms are not well established, caution is necessary to avoid premature incorporation of contested principles. While the Committee has occasionally referred to the best interests of the child (e.g., general comment No. 32 (2007), para. 42; and general comment No. 35 (2014), para. 62), the concept remains underdeveloped in its jurisprudence, and the International Covenant on Civil and Political Rights contains no express provision articulating it. In contrast, the Convention on the Rights of the Child designates it as a central principle in article 3, elaborated in general comment No. 14 (2013). Divergent interpretations are not per se unlawful – legal concepts are relative – and leaving inter-committee relationships ambiguous may be prudent in some instances. In footnote 20 of the Views, the Committee cites general comment No. 14 (2013) and two Views of the Committee on the Rights of the Child, notably A.M. and E.P. v. Switzerland, which also addressed the separation of a child from the detained mother. This case warrants attention, particularly as it included five members’ dissenting opinion, suggesting the underlying jurisprudence is not yet sufficiently settled. This argues against overreliance. Nonetheless, both the majority and the dissenting opinions in A.M. and E.P. underscore the significance of the best interests of the child as the dissent itself states (para. 6). Both opinions are in the same line in arguing that the child’s views must be taken into account in assessing best interests (see the Views of the majority, para. 9.3; dissenting opinion, paras. 7 and 8). The dissent further underscores this point by finding a violation of article 12 of the Convention on the Rights of the Child. While the degree of emphasis may differ, seemingly leading to the different conclusions, this does not preclude the Human Rights Committee from relying on the case. In any event, the child in the present case was only 3 years old at the time of separation (para. 2.5), rendering the factual matrix distinct from A.M. and E.P. In addition, communication No. 3597/2019 was submitted by the mother, whereas in A.M. and E.P., the authorship differed. The Committee’s reliance on the case is thus limited to the overlapping part between the majority and dissent, which may be regarded as settled jurisprudence. The Committee’s reference is therefore justified. The Committee also invokes the Bangkok Rules, furthering the consolidation of general human rights norms. Notably, it does so not in the abstract, but by directly engaging with the facts (especially in para. 10.6). Although the Committee could have reached its conclusions without invoking the best interests of the child, doing so would have been artificial, given that both parties relied on the concept. The use of this principle also bridges between articles 17, 23 and 24 of the Covenant, reinforcing the cohesion of the Covenant’s normative framework by clarifying its underlying rationale.

The use of the methodology applied in the Views for A.M. and E.P. is not confined to the Committee on the Rights of the Child but offers an approach of general applicability. As judicial dialogue evolves, clarifying the relationships between treaty bodies – identifying areas of convergence, divergence or uncertainty– will be increasingly important. Such efforts will foster substantive harmonization of human rights jurisprudence and strengthen the overall treaty body system.

The legal questions raised by the present communication are complex and unprecedented in the case law of the Committee. I acknowledge the cautious reasoning of the Committee in its assessment of the merits of the claims based on articles 17, 23 and 24 of the Covenant. As rightly stressed in paragraph 10.4, “viewpoints as to whether children of imprisoned mothers should stay with them in prison, and for how long, vary among specialists, with no consensus”.

This absence of consensus is reflected in the case A.M. and E.P. v. Switzerland decided almost simultaneously by the Committee on the Rights of the Child³⁰ dealing with a similar issue of separation between two children and their primary caregiver. Those Views were not adopted unanimously and the partially dissenting opinion by five members of the Committee on the Rights of the Child is instructive and useful for expressing my own reservation on the way in which the Human Rights Committee approached the present case. My disagreement is based more on the methodology and reasoning than on the conclusion itself.

30. CRC/C/98/D/153/2021. ↩

In paragraph 10.3 of the Views on communication No. 3597/2019, the Human Rights Committee rightly recalled the jurisprudence of the Committee on the Rights of the Child, the international standards and the definition of the best interests of the child as guiding principles for article 24 of the Covenant. As indicated by members of the Committee on the Rights of the Child in their partially dissenting opinion, the child-based approach means that “children are rights holders separate from their parents”. Talking about the Convention on the Rights of the Child, they add that: “It is therefore contrary to the spirit of the Convention [on the Rights of the Child] to suggest that the rights of children are negated by the misdeeds of their parents”.³¹

31. Ibid., partially dissenting opinion, para. 5. ↩

This is exactly what is disturbing in the Human Rights Committee’s analysis of the claim regarding the author’s daughter under article 24 of the Covenant. The Committee relied on the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) to assess whether the separation of a child from her mother was in breach of article 24. At the end of paragraph 10.4, it even concluded that: “Issues to take into account should include the conditions in prison and the quality of care children can expect to receive outside prison, if they do not stay with their mothers. This principle would imply that prison authorities should demonstrate flexibility and take decisions on an individual basis, depending on the circumstances of the child and family, and on the availability of alternative care options in the community.” Therefore, the lens adopted by the Committee is not based on the best interests of the child but on the link between the author’s deprivation of liberty (the offender/prisoner who would be the subject of the Bangkok Rules) and the situation of her daughter. This lens, focused on the criminal background of the author, is even clearer in paragraph 10.6, where the Committee expressly referred to the 16-year prison sentence “for a serious criminal offence” served by the author. It concluded that: the interference in the author and her daughter’s family life was in pursuit of a legitimate aim: the protection of the child’s best interest in the context of the enforcement of a prison sentence following a criminal conviction.³²

32. Emphasis added. ↩

Therefore, in the Committee’s view, the best interest of the child is relative and read in light of another relative right, the right to family life of the author. Contrary to what is affirmed in paragraph 10.3, the Committee took as a starting point of its reasoning the criminal record of the author. With such a methodology focused on the parent and not the child, the majority of the Committee did not respect the letter, the meaning and the spirit of the best interests principle and negated the status of the daughter as an autonomous rights holder.

A more child-based approach, respectful of article 24 read in the light of the international standards mentioned by the Committee in paragraph 10.3, could have led the Committee to only focus on the situation of the child in the childcare institution and then check whether it was appropriate for her, following all requirements imposed by her needs, including, for instance, in relation to her Roma cultural identity based on article 27. The conclusion would perhaps have been the same, but the reasoning of the Committee would have been more faithful to the spirit of article 3 of the Convention on the Rights of the Child.