Henning Becker v. Denmark

Henning BECKER v DENMARK

The facts as presented by the parties may be summarised as follows:

The applicant is a citizen of the Federal Republic of Germany. He was born in Schleswig in 1943. He is a journalist and the director of a body called Project Children's Protection and Security International (CPSI). His application concerns the alleged violation of the Convention by the Danish Government in the envisaged repatriation of 199 Vietnamese children who have been billeted on Livø in Denmark.

The applicant is represented before the Commission by Professor Peter Germer of Aarhus University.

Background of the children

The applicant states that in 1971 and 1972 the Vietnamese mountain tribes Mieng and Stieng, which belong to more than 100 ethnic minority tribes called the Montagnards, were almost completely wiped out by genocidal actions carried out by the so-called Vietnamese Liberation Front. On this point the respondent Government has forwarded a suggestion to the Commission that it was very unlikely that the applicant's assertion was correct.

The applicant goes on to state that he picked up 177 surviving Mieng and Stieng orphans in the vicinity of An Loc in 1972. He brought the children to a farm at Thu Doc near Saigon where he ran a children's home for them. Owing to financial difficulties this project was taken over in the beginning of 1974 by the Government of South Vietnam through the Ministry for the Development of Ethnic Minorities. However, this arrangement did not work out and the children were transferred in March 1975 to Saigon where the applicant operated two homes and where he already had 70 children.

Departure of the children from South Vietnam

It appears that. the situation in Saigon became more and more unsafe. Then, on 15 April 1975, the applicant arranged a meeting with the Minister for Ethnic Minorities. According to the applicant, the Minister belonged himself to the Montagnards and had during the meeting kept referring to his experiences in the previous days when his father and other relatives had been killed by the North Vietnamese and the Liberation Front. A Danish foreign correspondent who had been present confirms in a report dated 6 May 1975 that the reason for killing these persons had been their relationship to the Minister, being a member of the Saigon Government. At the meeting the applicant and the Minister concluded that the lives of the Montagnard children were in danger and they entered an agreement authorising the applicant to take the children to Europe. In the list of persons relating to this agreement there were 211 children including a number of children who did not belong to a Montagnard minority. The applicant undertook inter alia to organise their accommodation and education and it was also laid down that when peace was restored in the Republic of Vietnam, certain Montagnard students, in the care of the applicant's organisation, would return to Vietnam, to take part in the development of their country.

Entry of the children into Denmark

On 17 April 1975 the applicant applied with the Danish Ministry of Foreign Affairs for visas and residence permits for the children. He stressed that the children would return to Vietnam after the war, irrespective of which Government the country might have at that time.

The basic view of the respondent Government was that the Vietnamese children should be helped in Vietnam. The Government had stressed this in their press release issued on 21 April 1975. The Government had, however, found special circumstances to prevail in the present case and they announced that they were prepared, in conformity with the provisions of Art. 24 of the Geneva Convention of 12 August 1949, relative to the Protection of Civilian Persons in Time of War, to receive the children belonging to the special ethnic minority, provided that exit visas had been granted by the South Vietnamese Government and that the children would return to Vietnam following the cessation of hostilities.

The applicant, his staff and slightly more than 200 children left Saigon on 25 April 1975 by air with the assistance of the American help organisation USAID, United States Aid. The flight went via Hawaii to Alborg in Denmark where they arrived on 30 April 1975.

It turned out that not all of the children were Montagnard children, but some were children from the applicant's children's home - the Ninh family^[1], and they did not want to return to South Vietnam. According to the applicant a large number of the Ninh family were orphans who had been brought up in a Western culture-pattern in which fear and animosity towards communists were basic elements. The Montagnards, in addition, belonged to a minority and they were generally regarded as "third class citizens" and they also had a particular sense of freedom and loyalty which made their future position under the new regime in South Vietnam even more difficult.

The applicant's further approach to the Danish authorities

On 9 May 1975 the applicant and Professor Germer attended a meeting at the Danish Ministry of Foreign Affairs with representatives of that Ministry, the Ministry of Justice and the Ministry of Social Affairs. It appears that the purpose of the meeting was to inform the applicant of the Government's position in relation to his application for visas and residence permits for the children. Professor Germer states that he asked for a short term of respite during which the Government should guarantee that the children would not be returned to Vietnam, but this was refused. Allegedly the officials had even explained that they considered the war in Vietnam to be over, so that the children might in principle be sent back the next day.

Introduction of this application

On 10 May 1975 the applicant introduced this application. The children to whom it relates are 152 Montagnard children and 47 children of the Ninh family.

Attitude of the respondent Government

On 22 and 27 May 1975 the respondent Government informed the Commission that no enforceable order had yet been made to return the children to Vietnam. The Government also stated that it was their declared view that the children should return as soon as proper arrangements for their welfare in Vietnam had been established, and ways and means of establishing such arrangements were being investigated by the Government and - it added in its letter of 6 June 1975 to the Commission - in co-operation with the relevant Red Cross societies.

Registration of the children

During the period 2-18 June 1975 two police officers of the Department for the Supervision of Aliens established a file on each child. They interviewed those over 12 years of age from the Ninh family and all Montagnard children over 15 years of age. Reports on younger children were prepared on the basis of information supplied by the applicant. He himself was interviewed by an officer of the Aliens' Police on 6 June 1975. The individual files of the children were subsequently forwarded to the Ministry of Justice under cover of a report dated 30 June 1975.

Details of the children's fears

In support of the present application the applicant has submitted case histories by 10 boys and also a statement by the leader of the Montagnard group. Some of the boys state that their fathers died fighting the communists. In other cases the whole family had died or disappeared. Some boys further say that they cannot live among, or are afraid of, communists, or that there will be nobody in Vietnam to take care of them. The leader of the Montagnard group explains that these stories are typical and if the children were to be sent back it would be very dangerous. They would be considered as enemies because they had fled the country. The leader does not know anybody who wishes to go back.

In the context it could be mentioned that, according to the applicant, one older boy had (on 15 May 1975) made a statement to the Aarhus Stiftstidente^[2] implying that some of the children would attempt to commit suicide if they were repatriated. Further, two older boys, who had tried to escape from LivØ but had been picked up by the police, had explained that they had attempted to escape because they were afraid to go back to Vietnam. There is also the case of a boy who drowned during an escape, but the reasons for his escape are not clear.

Assistance of the High Commissioner for Refugees

The respondent Government had in the meantime had exploratory contacts with the United Nations High Commissioner for Refugees, who was acting at the request of the Government of South Vietnam, and on 14 July 1975 it informed the Commission that it had decided to avail itself of an offer by the High Commissioner to assist in the repatriation of the children. It attached great importance to the fact that the procedure agreed between the High Commissioner and the South Vietnamese authorities entailed the explicit and written acceptance by the South Vietnamese authorities of each individual repatriee as eligible for repatriation. This acceptance implied that the person fell under the amnesty proclaimed by the South Vietnamese authorities.

Tabling of application for residence permits in Denmark

The Government then informed the Commission on 17 July that members of the South Vietnamese group who felt unable to agree to repatriation might so indicate and apply for residence permits in Denmark. Some few such requests had already been tabled and were being processed.

It further appears that on 19 August 1975 the Minister of Justice informed the Department for Supervision of Aliens that the Government had decided that the repatriation of the children should be effected as soon as possible. Persons over the age of 15 who did not want to be repatriated might expect to be granted permission to remain in Denmark. Residence permits might be granted also to other persons if special circumstances militated against their repatriation. The Minister directed that this decision should be brought to the notice of the children and the accompanying adults as soon as possible and that they should be apprised that prior to repatriation an enquiry would be made into the circumstances of everyone of them. Individual conversations would be held with all persons over 15 years of age. In the course of these conversations it would be clarified whether any of them did not want to return to South Vietnam and, if so, for what reasons. A similar enquiry would be made in respect of somewhat younger children if their maturity or other circumstances warranted that their own wishes be taken into consideration. Those who wanted to remain in Denmark should be apprised that they could not in that event expect to remain within a group with the other Vietnamese.

Persons over the age of 15 who would not want to remain in Denmark should be asked to sign a declaration to the effect that they consented to repatriation and agreed to being repatriated directly to South Vietnam.

Moreover it would be clarified whether in the case of any of the younger children there would be decisive reasons for non-repatriation. When making recommendations to the Ministry the Department would take into account whether any of the younger children were so closely connected, by family or other personal ties, with older children or adults, who were expected to remain in Denmark, that a repatriation would be contrary to their interests.

The respondent Government added that it was known that pursuant to these directives a large percentage of the children may be entitled to apply for residence permits in Denmark either on account of their age or on account of special circumstances.

The applicant comments that an employee of the Danish Refugee Council - which was the competent body as regards the children - had undertaken an extensive study which shows that only three of the Montagnard children can be returned if due regard is paid to family relations.

Measures taken to ensure the future safety of the children

On 4 August 1975 the respondent Government obtained South Vietnamese observations on the refugee problem and an outline of South Vietnam's policies relative to orphans and ethnic minorities. According to these, special efforts were being made in respect of the minority mountain regions which were economically more backward. In particular, it appears that from the South Vietnamese Government's aim at national reconciliation the duty followed to take care of children and to educate them in the nation's spirit. The children now in Denmark would have the same rights as other children but, in addition, a claim to special considerations, because they were war victims. It was also the wish of the South Vietnamese Government that these children would be repatriated to their home regions for settlement there preferably in their own villages.

The respondent Government accepted that it had incurred a special responsibility vis-a-vis the children and it was ready to live up to this responsibility also after their return to South Vietnam. Practical arrangements for the return of the children would remain to be worked out between the South Vietnamese and the Danish Red Cross between which there were long-standing friendly relations, and the Danish Red Cross would continue to represent Danish responsibilities after the return of the children to South Vietnam and would, together with the South Vietnamese Red Cross, follow their re-establishment in their homeland.

COMPLAINTS

The applicant alleged that, if the children were sent back to Vietnam, there was a serious danger that they would be killed or physically persecuted in other ways because of their race, language and ethnic characteristics. Their repatriation would therefore be contrary to Art. 3 of the Convention.

The applicant further alleged that the repatriation of the children contravened the prohibition of collective expulsion of aliens laid down in Art. 4 of Protocol No. 4 to the Convention.

PROCEEDINGS

The application was introduced with the Commission on 10 May 1975 and registered on 12 May 1975. On 13 May 1975 the Secretary to the Commission informed the respondent Government of the introduction of the application and of a summary of its objects in pursuance of Rule 41 of the Commission's Rules of Procedure.

On 21 May 1975 the Rapporteur submitted his first report, provided for in Rule 40, to the Commission. The Commission decided on the same day

(1)        to request the Danish Government to submit certain information immediately and certain information before 9 June 1975, and to request the applicant to submit certain information before 9 June 1975 in accordance with Rule 42 (2) (a) and (3);

(2)        to continue its examination of the admissibility of the application at its session beginning on 7 July 1975; and

(3)        to request, under Rule 36, the Danish Government not to take any steps in the meanwhile which might prejudice the conduct of the present proceedings.

The information so requested was supplied by the respondent Government on 22 and 27 May and on 6 June 1975. The applicant supplied information on 13 June 1975.

On 23 June 1975 the President of the Commission decide to request the Danish Government to supply certain supplementary information as soon as possible - in accordance with Rule 42 (2) (a) and 28 (a).

Comments were submitted by the applicant on 1 July 1975 in relation to information from the Danish Government. On 7 July 1975 the respondent Government supplied their supplementary information.

The Rapporteur's second report dated 7 July 1975 provided for in Rule 40 was considered by the Commission which resumed its examination of the application on 10 July 1975. The Commission decided on the same day to request the Danish Government to supply certain additional information in the course of its session - in accordance with Rule 42 (2) (a) and (3).

This information was supplied by the respondent Government on 14 and 17 July 1975. In the meantime on 15 July 1975 the Commission made certain enquiries through its Secretary with the United Nations High Commissioner for Refugees in Geneva.

The Commission then obtained comments from the applicant on 18 July 1975.

The Commission continued its examination of the application on 18 July 1975 and decided:

(1)        to give notice to the respondent Government of the application and to invite the Government to submit observations on its admissibility before 18 August 1975 - in accordance with Rule 42 (2) (b) and (3);

(2)        to give precedence to the application - in accordance with Rule 28 (1) in fine;

(3)        to continue its examination of the admissibility of the application at its session beginning on 29 September 1975; and

(4)        to request, under Rule 36, the respondent Government to delay in the meanwhile any final movement of the children to be repatriated.

The respondent Government submitted its observations on 18 August 1975, and on 17 September 1975 the applicant submitted his observations in reply. Additional observations of the respondent Government were submitted on 25 September 1975.

At its present session the Commission also has regard to the Rapporteur's third report dated 30 September 1975, and the additional observations in reply which were obtained from the applicant on 2 October 1975.

FURTHER EVIDENCE AND SUBMISSIONS OF THE PARTIES AS TO THE FACTS

Further evidence submitted by the parties in relation to the future welfare of the children

The respondent Government had received from the Representative of the Provisional Revolutionary Government of South Vietnam in Copenhagen an official statement issued by his Government on 1 April 1975 regarding the "10 points policy in recently liberated areas". It drew particular attention to Articles 3 and 6 of that statement. Article 3 declared "The strict prohibition of all actions apt to give rise to discord, hatred or mistrust among people or among the various ethnic groups" (para. 1, 2nd sentence). It also declared that "minority nationals are equal in all respects to their fellow countrymen. Devoted assistance will be provided them to develop their economy and culture and improve their living conditions" (para. 2, 2nd sentence). Article 6 (para. 2) provided that "Devoted care will be taken of orphans, the disabled and the aged people".

The Government also referred to an interview on Danish television on 13 May 1975 at which the Representative of the PRG in Copenhagen denied that the PRG maltreated ethnic minorities. On the contrary, their struggle was not only for the liberation of the country but also for equality between all the races which live in Vietnam and between the Vietnamese and the ethnic minorities.

In amplification of its observations the respondent Government mentioned that the Government of South Vietnam recently had applied for membership in the United Nations, and declared that it would be prepared to fulfil the obligations of the Charter of the United Nations, among which was the duty to promote respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion (cf Arts. 1-2, 55-56).

The applicant submitted that Arts. 3 and 6 of them PRG 10 points policy should not be taken out of their context. He drew the Commission's attention to Arts. 4 and 9 which speak of severe punishments. In reply the Government considered that apart from the fact that the age of most of the children made it absurd to speak about punishment for criminal offences, it was completely irrelevant to mention Article 9 since this referred to soldiers, officers, policemen, war cripples and civil servants who leave the enemy's ranks. Article 4 prescribed punishment only for acts which in the majority of the states of the world and presumably also in most of the member states of the Council of Europe are held to be offences (the Government referred to Application No. 4162/69, Coll. 36, p. 95).

In the applicant's view the respondent Government's uncritical and unconditional acceptance of the PRG declaration was puzzling. He stated that the Government seemed to forget that words are inexpensive.

He had himself taken steps to obtain an objective and neutral evaluation of the PRG declaration and he has submitted a letter dated 28 August 1975 from Mr John T McAllister Jr, of Stanford University. The applicant explained that, according to Denmark's leading political scientist, Prof. B. Bjøl, Mr McAllister is the most competent and objective expert on Vietnam affairs. It appears that on the basis of the Provisional Government's statement, Mr McAllister does not find sufficient guarantee that no harm will come to the children if they return to Vietnam. In fact, there was no guarantee that returning refugees would be free from persecution.

The reference to the statement made by the Representative of the PRG on television on 13 May 1975 the applicant could only reject, as further proof of the naivety of the respondent Government.

On the matter of membership in the United Nations the applicant said that, if the commission finds it relevant, be could mention several member states of the UN which have committed horrible crimes against humanity.

He also considered that most of the observations which the Danish Government had obtained on 4 August 1975 were stereotyped propaganda and did not deserve any comment. He noted, however, that the South Vietnamese Government was making a special effort in the mountain regions, but it had not been mentioned that there had been reports of clashes in the Central Highlands. In addition he noted a statement that previous political opponents have been elected to leading posts within the National Liberation Front. In the applicant's opinion this was not the whole truth.

He claimed that, according to a New York Times News Service telegram of 29 August 1975, reports from travellers and intelligence sources indicate that many of the appointments are "window dressing". Further, Neue Zurcher Zeitung had reported, on 19 June and 4 September 1975, that the so-called third force was having a hard time. The applicant also commented that it had been reported that children, only four years old, were being subjected to re-education. In this respect he referred to an article in Le Monde on 20 August 1975, in which the former Bishop of Kontum was quoted. He submitted that it might be argued that re-education, PRG style, was in itself inhuman and degrading treatment, and he said that anyhow re-education of the children would undoubtedly be inhuman treatment because they would object so vigorously that they would have no chance of escaping alive.

The applicant also submitted that he possessed a large collection of press cuttings and statements from experts on Vietnamese affairs supporting the view that it would be inhuman treatment to return the children to Vietnam; he referred first to an article in the Daily Telegraph on 21 April 1975, which reported on an execution of 185 women and children. The women, some being wives of Americans and Koreans, had been denounced by cadres for poisoning the Vietnamese blood. There was also a report on a massacre of 300 people by the North Vietnamese. He then referred to an article in the Aalborg Stiftstidende on 6 July 1975 from which it would appear that Mr N G W Thorne, the civil high commissioner of the refugee camp, Camp Pendelton, California, had stated that the Montagnard orphans would face an inhuman fate if returned to Vietnam. The applicant also quoted statements by three experts on Vietnamese Affairs from the Aalborg Stiftstidende of 21 September 1975; Mr P I Honey, Professor at the University of London, had believed that the lives of many of the children would be in very grave danger. Mr B Crozier, Director of the Institute for the Study of Conflict, London, had no doubt that the children would be subjected to prolonged indoctrination courses of an essentially punitive character. Mr M W Browne, Editor of the New York Times thought that it would be terribly cruel for the children to go back. He mentioned that ethnic Montagnards were third class citizens in Vietnam.

It is recalled that the envisaged repatriation of the children would take place through the intermediary of the United Nations High Commissioner for Refugees and that practical arrangements remained to be worked out between the South Vietnamese and Danish Red Cross Societies. According to the applicant the Danish Red Cross had in the beginning of May 1975 publicly announced that it could guarantee the safe return of all children, and the applicant stated that the organisation might choose to stick to that announcement in order not to lose face. Further, he did not consider the PRG Red Cross to be an impartial body. He also stated that the Danish Red Cross had been frustrated by the lack of co-operation of the South Vietnamese authorities.

The applicant also challenged the role of the High Commissioner for Refugees and submitted that he could not guarantee the future safety of the children if they were repatriated. The respondent Government said on this point that it had never thought that the High Commissioner's assistance would provide a settlement of the problem. It would merely stress that the applicant must have a very strong case for venturing to allege that the High Commissioner would assist in repatriating children to a country where they would be subjected to inhuman treatment. The respondent Government referred to Application No. 2143/64 (Coil. 14, p. 24) where the Commission concluded that the information provided by the Government had established that the litigious extradition was not placed in a context which cast doubt on the compatibility with the Convention insofar as the Austrian administration of Justice had expressly approved of it and the United Nations High Commissariat for Refugees had given its consent. In the applicant's view, however, this case was not relevant because it concerned a fugitive from justice and the High Commissioner had only assisted in establishing that the applicant was not a refugee in the sense of the Geneva Convention.

As to the present case the applicant noted that the procedure agreed between the High Commissioner and the South Vietnamese authorities entailed the explicity and written acceptance by the South Vietnamese authorities of each individual repatriee as eligible for repatriation and that this acceptance implied that the applicant children fell under the amnesty proclaimed by the South Vietnamese authorities. The applicant considered however, that the idea of obtaining amnesty for children was strange and he questioned what kind of Government the Danish Government considered the Vietnamese authorities to be, when it found it necessary to look for implied amnesty for children. Further the proclamations by the South Vietnamese authorities were not decisive, since words were inexpensive. The applicant would request a declaration in writing from the South Vietnamese authorities stating that they accepted that the Danish Red Cross would follow the children's re-establishment. It should further appear from such a statement that these authorities have been informed and accept that a large percentage of the children will remain in Denmark.

SUBMISSIONS OF THE PARTIES AS TO THE LAW

Applicant's relationship to the children

The applicant submitted that the agreement of 15 April 1975 between the South Vietnamese Ministry for the Development of Ethnic minorities and the applicant's Project gives him status of guardian of the Montagnard children. His relationship to the Ninh family rested on individual adoption orders.

The respondent Government stated that the applicant's civil law status in domestic relations with the children should be dealt with pursuant to Vietnamese law. It had not had any cause to investigate this in detail and the applicant had not produced any documentation on the matter. The Government found, judging from the available material, that the agreement of 15 April 1975 vested in the applicant neither custody nor guardianship of the children. It merely gave the applicant authorisation to leave Vietnam with the children with the consequential right and obligation to care for them.

Issue of exhaustion of remedies

The applicant maintained that no effective domestic remedies were available to him. He stated that according to Art. 63 of the Danish Constitution the courts of justice were only entitled to decide questions bearing upon the scope of the authority of the executive. In the present case the decision of the Government to return the children was final and completely discretionary. The decision as to whether the war was over was a political decision which could not be subject to judicial review.

The respondent Government opposed this argument, saying that the courts were entitled to try any question pertaining to the legality of any decision of the Government on the return of the children, and also whether the decision was in conformity with the Convention. The applicant commented on the latter point that it implied that the Convention had been incorporated into Danish law and therefore would be respected by the Danish courts. This was, however, in his submission not the law and there were no cases decided by Danish courts supporting the theory advanced by the Government.

The Government also informed the Commission that an action under Art. 63 of the Constitution would not have suspensive effect.

Applicability of Art. 3

In its observations the respondent Government maintained that the allegation of a violation of Art. 3 of the Convention was manifestly ill-founded.

The Government pointed out that the Convention contained no provision to the effect that an alien should have the right to take up residence or to be given political asylum in, or not to be repatriated from, a foreign state.

The possibility of bringing an application of this nature within the scope of Art. 3 of the Convention had in earlier statements by the Commission been interpreted as a consequence of a tacit agreement between the Contracting Parties to restrict their power under general international law to control the entry and exit of a liens to the extent and within the limits of the obligations which they have assumed under the Convention. Only in extraordinary case could the refusal of a right, which is not among the rights protected in the Convention, constitute non-observance of Art. 3. This would be even more evident if such a conclusion were to interfere not only with powers under general international law but also with the obligations of a Contracting Party under Art. 24 of the Fourth Geneva Convention of 1949, and with the exercise of the rules of the 1951 Geneva Convention on the Status of Refugees. An interpretation of Art. 3 which did not take due account of these facts might make the Contracting Parties reluctant to render the humanitarian assistance envisaged in the two Geneva Conventions.

In the applicant's view other treaty obligations did not invalidate Art. 3 of the Convention. Thus, the fact that a Contracting Party is under a treaty obligation to extradite an alien did not prevent the Commission from finding that an extradition would be inhuman treatment under Art. 3. In relation to the Government's reference to the Geneva Convention of 1951 on the Status of Refugees, the applicant remarked that the Government did not explain what that had to do with the present case.

Commission's case-law

In the Government's further submission it was observed that the present case differed essentially from the cases of expulsion and extradition which have previously been brought before the Commission in invocation of Art. 3. In this case repatriation was being planned in co-operation with the United Nations High Commissioner for Refugees and the relevant Red Cross Societies and following the grants of residence permits to those of the children who met the requirements for such permits. This was true also of the very background to the repatriation. Denmark was committed under Art. 24 of the fourth Geneva Convention which was based on consideration for the welfare of evacuated children. In most of the past cases of expulsion or extradition the motivations were that the persons concerned had committed criminal offences in the receiving state, making their presence there undesirable, or their extradition bad been requested for trial or punishment in respect of a criminal offence committed in the country of citizenship.

The Commission's case-law was of relevance, however, in its very strict requirements for the applicants to submit proof of the existence of "exceptional circumstances" and "serious reasons to believe that an alien will be subjected to treatment prohibited under Art. 3."

The Government further observed that in practically all cases the applicants were unable to meet these requirements, and the Government referred in particular to two cases with regard to the case histories submitted by the applicant. The Government pointed out that in Application 3040/67 (Coll. 22, p.138) the applicant's father who had served in the Germany army, was shot by Yugoslav partisans and his family was discriminated against after the war. It was commented that the Commission, however, had seen no reason to suspect that persons whose relatives had fought the regime currently in power would be exposed to "inhuman treatment" even where the applicant had alleged that he had been subjected to discrimination in the years before he left the country. The case histories submitted with the present application covered only the period up to the end of the Vietnam war and in verified form they should only be taken as proof, irrelevant in this connection, of the cruelty of the war. Thousands and thousands of Vietnamese children could probably tell of similar events and there was nothing to indicate that the relatives of the Livø children concerned were killed solely because of their race, language or ethnic characteristics and nothing had been adduced to render it probable that the children themselves would be exposed to inhuman treatment on their return.

A review of the Commission's practice would also show that several applications have been declared manifestly ill-founded even though the applicant after his repatriation would incontestably be prosecuted for criminal offences which he allegedly had not committed. In Application No. 1802/63 (Coll. 10, p. 27) the applicant considered it to be the purpose of the charge to seize him as being a political opponent and to bring him to trial for big political opinion and record. It was confirmed that the applicant had worked for the secret service of the former Turkish Government and that a charge against him for acting as a spy for the USSR was still pending. In the said case the Minister of Justice of the respondent Government (Germany) had even admitted that it wag possible that arrested persons were subjected to more severe treatment than was permitted in Germany.

The applicant agreed that the cases cited by the Government were not relevant as the facts bore no resemblance to those of present case. In some of the cases there were even reasons to believe that the applicants were frauds who tried to evade criminal prosecutions by invoking the Convention. None of those applicants had submitted any proof of the existence of circumstances constituting an infringement of Art. 3. As to the Government's reference to Application No. 3040/67 in connection with the case histories submitted, the applicant observed that that application was lodged with Commission in 1967 and the father of the applicant in that case was shot in 1945. That case was therefore irrelevant unless the respondent Government were to promise not to return any of the children until 1997. The Government's statement that case histories could only be taken as proof of the cruelty of the war gave the applicant occasion to state that the Government seemed to overlook the fact that the children might choose to fight the communists if they were returned to Vietnam or commit suicide instead of going back.

Issue under Art. 4 of Protocol No. 4

As to the applicant's further allegation that the envisaged repatriation of the children would amount to collective expulsion of aliens which is prohibited by Art. 4 of Protocol No. 4 the respondent Government submitted that it was an allegation which was clearly incompatible with that provision. The Government argued that in concept expulsion was fundamentally distinct from repatriation effected in compliance with Art. 24 of the fourth Geneva Convention. The Government quoted several recognised textbooks on international law^[3] and summarised the characteristics by which expulsion is described in that the measure must be unilateral, voluntary, spontaneous, motivated by security or police interests of the expelling State and undertaken without having regard to the destiny of the expellee in the State to which he is expelled. In the case of repatriation of the South Vietnamese children, none of these characteristics would be present. In this case repatriation would be effected in compliance with commitments under a multilateral treaty and in co-operation with the UN High Commissioner for Refugees who was acting at the request of the Government of South Vietnam. Art. 24 of the 4th Geneva Convention expressly laid down as a prerequesite that repatriation shall take place after the conflict. In relation to Art. 24 Denmark had to bear in mind that the purpose of that Article, viz the welfare of the children, could best be safeguarded also by returning them - after the end of the war - to the country to which they have family and cultural ties. Finally, the Government had stressed already before the children's entry into Denmark that they would be repatriated when the situation in South Vietnam permitted and the necessary measures for repatriation had been taken. The statements of the Government would further show that there would be no question of sending out of the country, without having due regard for their welfare, per sons whose stay in Denmark was considered undesirable for security, police or any other reason.

The respondent Government stressed that the allegation that the repatriation would be in the nature of a collective measure was not tenable and without any foundation.

The applicant on the other hand, considered that a forced return of the children was a clear case of collective expulsion, because these children were the only group of Montagnard and Vietnamese refugees in Denmark. He considered that the works on international law quoted by the Government could not support their view. A thorough analysis of the various nations would have to cover more than the rather casual selection made by the Government. Moreover, the quotations were clipped out of their context in a way that made them misleading. The definitions quoted could only serve to distinguish expulsions from extradition, and the applicant agreed that the compulsory repatriation of the children which the respondent Government intended to carry out was not extradition. A thorough analysis of international documents and teachings of qualified publicists would show that the work expulsion is frequently used without precision. There was no generally accepted definition of expulsion in international law. Therefore the applicant suggested that the Commission must lay down its own interpretation for the purpose of deciding cases under Protocol No. 4. An interpretation in accordance with the spirit of the Protocol would lead to the result that expulsion in the sense of its Arts. 3 and 4, with the exception of extradition, would comprise all measures by which a person is forced to leave the country.

The applicant characterised collective expulsion by the fact that a group of persons is expelled without due regard to the individual case. He had noted that that the Government maintained that each individual case would be judged on its merits to the greatest possible extent that therefore the expulsion would not be a collective measure. However, the applicant felt that the respondent Government could not be trusted in this matter. It had time and time again declared that the majority of the children should be sent back to Vietnam and for political reasons the Government could not afford to change their decision.

THE LAW

Issues

The applicant lays to the charge of the respondent Government that its policy to return 199 Vietnamese and Montagnard children, (or in the event those who will not be granted residence permits in Denmark) to Vietnam as soon as possible would involve their subjection to inhuman treatment in violation of Art. 3 of the Convention. The children's lives would be in danger in Vietnam or they would face persecution there because of their race, language and ethnic characteristics. The suggestion is also that the Government would offend the prohibition of collective expulsion of aliens laid down in Art. 4 of Protocol No. 4 to the Convention.

Alleged victims

The Commission observes that the applicant does not claim that he himself is the direct victim of a violation of the Convention. In substance it is, of course, the children who are the proper applicants and Alleged potential victim, but they are orphans or depend on the applicant and the Commission accepts that the applicant has been entrusted with at least the care of the children by the presumably competent Vietnamese authority of the time on behalf of their parents. For the purpose of lodging this application he may accordingly be considered as an indirect victim in that he has a valid personal interest in the welfare of the children.

It follows that he is competent to lodge the application.

Question of an effective remedy

The Commission notes that it is argued whether or not Article 63 of the Danish Constitution offers a remedy against an order of the Government to return the children to South Vietnam. It recalls that in its decisions on the admissibility of Applications Nos. 5095/71^[4], 5920/72 and 5926/72^[5] the Commission found that proceedings brought under Article 63 of the Constitution in relation to certain administrative measures, would not clearly have been without any prospects of success. However, in view of the arguments in the present case it should be pointed out that no decision with executory force has yet been taken to return the children and (even if the temporary residence permit would suffice as a basis for an action under Article 63 of the Danish Constitution) the Commission notes that a court action under the said provision in any event would not have suspensive effect on an order of repatriation. Consequently in this case it would not be an effective remedy within the meaning of Article 26 of the Convention and the application cannot be rejected for non-exhaustion of remedies.

Applicability of Article 3

The first issue to be considered by the Commission arises from the allegation under Art. 3, which provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment.

The Commission confirms that according to its established case-law the right to asylum and the freedom from expulsion do not figure, as such, among the rights and freedoms mentioned in the Convention, and the Commission refers to the decisions on the admissibility of the applications on which the parties have commented, to Applications Nos. 2143/64 (Yearbook 7, p. 328) and 1611/62 (Yearbook 8, p. 168), and also to more recent cases, for example Applications Nos. 6315/73 (D.R. 1/73) and 6357/73.

The Commission adds that neither does the Convention guarantee as such the freedom from repatriation.

The Commission also confirms that it has frequently held that expulsion and, considering this case holds that, repatriation of a person may in certain exceptional circumstances raise an issue under the Convention and in particular under Art. 3, namely where there are serious reasons to believe that the person concerned will be subjected, in the State to which he is to be sent, to treatment which is in violation of this Article (see also Applications Nos. 4314/69 (Yearbook 13, p. 902) and 5012/71 (Coll. 40, p. 62)).

Future safety of the children

The Commission recognises that it is not within the power of the respondent Government to give guarantees as to what should not happen to the children in South Vietnam, nor is it reasonable or even feasible to require guarantees as suggested by the applicant.

The Commission is satisfied that the respondent Government concurrently with the examination of this application, have taken measures which in the circumstances must be considered reasonable to ensure as far as possible that the safety of the children, if they are repatriated, will not be jeopardised. The Commission has in reaching this opinion taken into account the declarations by the respondent Government that instructions have in the meantime been issued that an enquiry should be made into the individual cases in order to qualify whether the persons should be granted residence permits or whether they should be repatriated.

In particular, it appears that members of the group over the age of 15 who do not want to be repatriated may expect to remain in Denmark. Further, residence permits may also be granted to somewhat younger children if their maturity or other circumstances warrant that their own wishes be taken into consideration. Concerning the younger children there will be an enquiry in order to ascertain whether there are decisive reasons for non-repatriation. It will be taken into account whether any of the younger children are so closely connected by family or other personal ties with older children or adults who are expected to remain in Denmark that a separation would be contrary to their interests.

Furthermore, the Commission has taken into account that the respondent Government has established contact with the United Nations High Commissariat for Refugees in order to avail itself of its facilities to repatriate the children to South Vietnam. Ex officio the Commission observes that although the High Commissariat is not in a position to give formal guarantees as to the future of the children in South Vietnam, it has pointed to "the amnesty" which follows admission of the children by the Vietnamese authorities. In addition the High Commissariat is in a position, through its office in Saigon, to offer financial support to those children who would be in a needy situation after their return.

Furthermore, it seems to the Commission hardly probable that the High Commissariat would lend it assistance to repatriation of the children if their fate were at stake.

Concerning these children, who nevertheless would be repatriated because there are no special circumstances which militate against their repatriation, the Commission takes note that the respondent Government have accepted a special responsibility for them also after their return to South Vietnam, and will continue to be represented by the Danish Red Cross. The Government is also making efforts to work out practical arrangements for their return between the South Vietnamese, and the Danish, Red Cross which organisations will also follow up their re-establishment in their homeland.

Having regard to the details now available, it follows that there are no serious reasons to believe that the children would face treatment contrary to Art. 3 - involving the Danish Government's international responsibility under the Convention - on return to Vietnam and that therefore the allegation under Art. 3 is manifestly ill-founded within the meaning of Art. 27 (2) of the Convention.

Question of collective expulsion

The applicant's further allegation that the repatriation of a group of the children will be in the nature of collective expulsion of aliens as prohibited by Art. 4 of Protocol No. 4, remains to be considered.

In the view of the Commission "collective expulsion of aliens" means any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group.

Since the respondent Government will allow each individual case to be judged, as far as is practicable, on its merits, and since it may be in the interests of some of the children to be repatriated rather than to remain in Denmark, no issue of collective expulsion can arise.

It follows that the remainder of the application should be rejected as being incompatible ratione materiae with the provisions of the Convention under Art. 27 (2).

For these reasons, the Commission

DECLARES THIS APPLICATION INADMISSIBLE.

---

^[1] Name given by the applicant to a group of children he had taken into his car and purportedly adopted.

^[2] A local Danish newspaper

^[3]

O'Connell:	International law, 2nd ed., London 1970 p.711
Guggenheim, P:	Traité de Droit International Public, Genève 1953, Tome I, pp. 357-358
Sibert, M:	Traité de Droit International Public, Paris 1951, Tome I, p. 628
Strupp-Schlochauer, Worterbuch des Volkerrechts, Berlin 1960, Erster Band p. 130
Whitman:	Digest of International Law, Washington 1967, Vol. 8, pp. 850-851

 

^[4] Collection 43, p. 44

^[5] Collection 44, p. 93