On the 17th of January 2023, the ECtHR delivered its judgment in Minasian and Others v. the Republic of Moldova, application no. 26879/17. The case concerned a mother and her three minor children staying lawfully in Moldova after allegedly fleeing persecution in Georgia. The family irregularly crossed the border to Romania, but they were immediately returned to Moldova. The Moldovan Bureau for Migration and Asylum (BMA) then ordered the mother to return to Ukraine, but her children were not mentioned in that decision. All the applicants were subsequently detained.Regarding Article 5 (1) ECHR, the Court stated that the mother’s application was inadmissible as she failed to properly raise a complaint regarding her deprivation of liberty in domestic procedures. However, the three children did not have national remedies available and so admitted their complaints.The ECtHR found that children’s detention was unlawful as the they were not subject to the expulsion decision and all the national courts’ decisions only mentioned them as accompanying their mother. The Court noted that domestic courts made no analysis of whether the detention of children was a measure of last resort, since there was no examination of the children’s situation. Moreover, there was no required analysis of whether detention was appropriate for children, notably in respect of contacts with their peers, recreational and other activities.The Court further ruled that Moldova violated Article 5 (4) ECHR in respect of the children. The ECtHR observed that while the mother was able to challenge her detention, the children could not do so due to the lack of legal basis. As a result, they were in a legal limbo for more than a month without an effective remedy at their disposal and their detention or release completely depended on their mother’s legal situation.
ECtHR: Moldova breaches the right to liberty of children detained with their mother without being a part of detention related procedures
