CRC/C/98/D/153/2021, A.M. and E.P. v. Switzerland

Decision on merits; Subjects: RIGHTS OF THE CHILD, SWITZERLAND; [CRC: Kinderrechtskonvention, Übereinkommen über die Rechte des Kindes; Convention relative aux droits de l'enfant; Convenzione sui diritti del fanciullo]

Erwägungen (19 Absätze)

E. 6 In its additional submissions of 7 July 2023, the State Party submitted that, with regard to the available legal means to contest the terms of her detention, the visiting rights afforded to her and the decisions concerning her semi-detention and the use of an electronic tag, insofar as these aspects had not been determined in a decision subject to appeal, the authors’ mother could have requested such a decision on the basis of article 49 of the Act of 23 May 1989 on administrative procedure and jurisdiction of the canton of Bern, and subsequently contested any negative decision, including by raising issues related to the Convention. The possibility of appealing against the terms of detention is also clear from the documents attached by the authors to their comments of 18 August 2022. For example, the general decision of 3 January 2022 concerning the temporary restrictions imposed by the Hindelbank facility to protect inmates in the context of the COVID-19 pandemic indicates the means of appeal. Likewise, it is clear from the letter from the Enforcement and Probation Service of the canton of Lucerne, dated 21 June 2022, that the competent authorities decide to grant placement in external accommodation and day release employment in the form of electronic tagging in a decision subject to appeal. With regard to the measures taken in respect of the authors by the child and adult protection authority, the right to appeal against the decisions in question is enshrined in article 314 (1), read jointly with article 450 (1), of the Swiss Civil Code. Thus, the terms of the sentence enforcement, in particular the visiting rights and release on temporary licence, and the measures adopted by the child and adult protection authority, were not the subject, even indirectly, of the decisions challenged by the authors in the present case. The authors’ claims in this respect thus go beyond the scope of the present dispute and cannot be examined by the Committee. The State Party concludes that the authors have not exhausted domestic remedies with regard to their claims concerning the terms of their mother’s detention, the release on temporary licence granted and the measures adopted by the child and adult protection authority. Authors’ additional comments on the State Party’s observations

E. 7 In their comments of 24 July 2023, the authors refer to a study of children whose parents are in prison in which they took part. Issues and proceedings before the Committee Consideration of admissibility

E. 8.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol, whether the communication is admissible under the Optional Protocol.

E. 8.2 The Committee notes that, in a decision dated 11 February 2021, the European Court of Human Rights declared the application lodged by A.P.W. inadmissible because the evidence before it did not disclose any appearance of a violation of the rights and freedoms set out in the European Convention on Human Rights. In view of the fact that this complaint concerned A.P.W. and not the authors, the Committee considers that the same matter is not at issue within the meaning of article 7 (d) of the Optional Protocol and that this article therefore does not preclude the admissibility of the present communication.

E. 8.3 The Committee takes note of the State Party’s argument that A.P.W.’s custodial sentence was imposed by a final judgment on 21 November 2017, whereas the authors referred their communication to the Committee on 20 July 2021, that is, almost four years later, significantly exceeding the one-year time limit after the exhaustion of domestic remedies provided for in article 7 (h) of the Optional Protocol, and that the authors have not demonstrated that it was not possible to submit the communication within that time limit. The Committee observes, however, that the authors’ claims do not relate to the imposition of A.P.W.’s sentence but to its enforcement. Accordingly, the Committee considers that it is not precluded by article 7 (h) of the Optional Protocol from examining the present communication. CRC/C/98/D/153/2021 GE.25-03019 11

E. 8.4 The Committee also takes note of the State Party’s argument that domestic remedies have not been exhausted in respect of the claims concerning the authors’ care arrangements and the arrangements for contact between them and their mother, including visiting rights and release on temporary licence.

E. 8.5 The Committee recalls that authors must make use of all judicial or administrative avenues that may offer them a reasonable prospect of redress. The Committee is of the view that domestic remedies need not be exhausted if, objectively, they have no prospect of success, for example in cases where the claim would inevitably be dismissed under applicable national laws or where established jurisprudence of the highest domestic courts would preclude a positive result. Nevertheless, the Committee notes that mere doubts or assumptions about the success or effectiveness of remedies do not absolve authors from exhausting them.

E. 8.6 In the present case, the Committee notes that the authors’ claims relate to the Federal Supreme Court’s decisions of 17 August 2020 and 12 March 2021, which concern the enforcement of the sentence handed down, namely the date on which it was to begin and the facility in which the sentence was to be served. It also notes the State Party’s argument that the authors have made no attempt to lodge appeals relating to the terms of the sentence enforcement or their care arrangements and have not offered any justification that such appeals would be unlikely to succeed. However, the Committee observes that the authors’ complaint does not concern their placement, but the modes of enforcement of their mother’s sentence. The Committee therefore concludes that the available domestic remedies have not been exhausted and declares this part of the communication admissible under article 7 (e) of the Optional Protocol.

E. 8.7 The Committee notes the authors’ claims under article 2 of the Convention, insofar as the authors were allegedly separated from their mother through no fault of their own and without necessity and therefore suffer from a significant developmental delay compared to other children. However, the Committee notes that the authors make these claims in general terms and do not explain how the contested decisions are discriminatory. Therefore, it declares these claims manifestly ill-founded and inadmissible under article 7 (f) of the Optional Protocol.

E. 8.8 The Committee takes note of the authors’ claims under article 12 of the Convention, insofar as they were not notified of the decision, were not able to assert their rights independently during the proceedings, were not granted any procedural rights, and were not reimbursed for legal costs. However, the Committee notes that the authors were not parties to the domestic criminal proceedings and therefore had no procedural rights. Therefore, it considers that these claims are manifestly ill-founded and declares them inadmissible under article 7 (f) of the Optional Protocol.

E. 8.9 However, the Committee considers that the authors have sufficiently substantiated, for purposes of admissibility, the remainder of their claims under articles 3, 9 and 12 of the Convention relating to the fact that they were not heard in the decisions concerning the enforcement order and that their best interests were not taken into account as a primary consideration in the enforcement of their mother’s prison sentence, which adversely affects their right not to be separated from her under article 9 of the Convention. The Committee therefore declares this part of the communication admissible and proceeds with its consideration on the merits. Consideration of the merits

E. 9.1 The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 10 (1) of the Optional Protocol.

E. 9.2 The Committee takes note of the authors’ claim that the State Party violated their rights under articles 3, 9 and 12 of the Convention, as they were not heard by the domestic authorities and that their best interests were not duly assessed in the proceedings for the enforcement of their mother’s criminal sentence.

E. 9.3 The Committee considers that, even if the authors were not parties to the domestic criminal proceedings against their mother, these proceedings, including the enforcement of the criminal sentence imposed on her, were a matter concerning them within the meaning of CRC/C/98/D/153/2021 12 GE.25-03019 articles 3 (1) and 12 (2) of the Convention, since such proceedings would determine the extent to which they could maintain contact with their primary caregiver. The Committee must therefore determine whether, in the proceedings relating to the enforcement of the criminal sentence imposed on the mother, the domestic authorities have taken into account the authors’ best interests and heard them, either directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law, as required by articles 3 (1) and 12 (2) of the Convention.

E. 9.4 The Committee notes that a guardian had been appointed for the authors several years before A.P.W. served her sentence, and that the guardian had been tasked with ensuring that the children were placed in alternative care appropriate to their situation and age. It also notes that, following consultations between the Prison and Probation Service and the children’s guardian, the date of enforcement of the mother’s sentence was postponed several times, for a total of nine months, in order to take account of the children’s specific situation. In this regard, the Department of Justice and Security took into account the fact that A.M. had to undergo back surgery and ultimately set the start of the sentence’s enforcement for 1 December 2020, so that A.P.W. could be present during her hospital stay, a decision that was based on the court’s consideration of the authors’ best interests. The Committee further notes the State Party’s argument that the Prison and Probation Service also held a meeting with the mother about the family situation and the possibility of placing the authors in an alternative care facility for the duration of the sentence. The Committee takes note of the State Party’s argument that, in the present case, there was no conflict of interest between the authors and their mother regarding the enforcement of her sentence in a way that would allow them to maintain contact. It therefore concludes that the authors were able to be heard indirectly by both their mother and their guardian, whose role made it possible to assess their situation and interests separately. The Committee notes that the Enforcement and Probation Service postponed the start of the sentence by nine months so that the authors could receive optimal care.

E. 9.5 With regard to the choice of prison, the Committee notes the authors’ claim that their mother’s placement was far from their home and that this did not respect their best interests. The Committee recalls that it is for the national authorities to examine the facts and evidence and to interpret and enforce domestic law, unless their assessment has been clearly arbitrary or amounts to a denial of justice. It is therefore not for the Committee to interpret domestic law or to assess the facts of the case and the evidence in place of the national authorities but to ensure that their assessment was not arbitrary or tantamount to a denial of justice and that the children’s best interests were a primary consideration in that assessment. However, in the present case, the Committee notes that the State Party has ensured that A.P.W.’s sentence is served in a progressive manner that promotes her social reintegration and that, after serving half of her sentence, A.P.W. can benefit from a work release scheme, be transferred close to the authors and take care of them. It also observes that only two penal institutions in the State Party are for women, as Grosshof prison does not allow for all stages of the progressive enforcement of sentences. In this regard, it also notes the State Party’s argument that, given the length of her sentence, it was not possible for A.P.W. to serve it in a prison closer to the authors.

E. 9.6 The Committee takes note of the authors’ assertion that visits were rare and insufficient. However, it also takes note of the State Party’s assertion that regular contact was maintained between the authors and A.P.W., contrary to what the authors claim. It notes in particular that Hindelbank prison allows visits for children under 16 outside of the visiting quotas and that the authors were able to call A.P.W. every day.

E. 9.7 In light of the above, and on the basis of the information in the file, the Committee cannot conclude that the State Party failed to give sufficient consideration to the children’s best interests and to hear them in the proceedings for the enforcement of their mother’s criminal sentence, or that it failed to take the appropriate measures to ensure the authors’ contact with their imprisoned mother.

E. 10 The Committee, acting under article 10 (5) of the Optional Protocol, is of the view

that the facts before it do not disclose a violation of articles 3, 9 or 12 of the Convention.

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Annex

[Original: English]

Joint opinion of Committee members Bragi Gudbrandsson,

Luis Ernesto Pedernera Reyna, Ann Skelton, Velina

Todorova and Benoit Van Keirsbilck (dissenting)

In writing this partially dissenting joint opinion, we recognize that the State party’s

law and practice include measures that allow for the consideration of the impact of sentencing

on children, and that various efforts were made that focused on the children’s best interests,

as detailed in paragraph 9.4 of the Views. The present joint opinion focuses on certain

decisions made by the Federal Supreme Court, which indicate a misunderstanding of the

obligations of courts in the application of articles 3 and 12 of the Convention in the context

of the enforcement of the sentences of children’s primary caregivers.

On admissibility, we respectfully disagree with the Committee majority regarding its

finding, in paragraph 8.8 of the Views, that the authors’ complaint under article 12 of the

Convention was inadmissible as they were not parties in the domestic criminal proceedings

and therefore had no procedural rights. In fact, the claim under article 12, as set out in

paragraph 3.2 of the Views, is focused on the contested decisions on enforcement.

Proceedings relating to the enforcement of sentences are administrative rather than criminal

proceedings. It is our view that, even in criminal proceedings, at the time of sentencing, it is

good practice to ensure that the sentencing court is aware of the child’s views and wishes,

which may be heard through a representative. However, this case is focused not on the

sentencing process, but on the execution of the sentence. While it is true that the children

were not separate parties, this fact does not mean that they had no procedural rights. We are

of the view, for reasons articulated below, that article 12 does give children the right to be

heard in judicial or administrative proceedings affecting them, including on decisions relating

to the enforcement of sentences. Accordingly, we would have found the full claim under

article 12 to be admissible.

On the merits, we also respectfully disagree with the Committee majority regarding

the claims under articles 3 and 12. In this regard, we focus on the decision of the Federal

Supreme Court, of 17 August 2020, to dismiss the appeal regarding the starting date of the

sentence. As explained in paragraph 2.2 of the Views, the Federal Supreme Court had found

that A.P.W. had brought about her separation from her children and that neither she nor the

children were entitled to alternative arrangements. Furthermore, the Court had observed that

the children would not be directly affected by the ruling, since they themselves would not be

imprisoned. We consider this to be a misreading of the rights of the child under articles 3 and

12 of the Convention. In a similar decision, of 12 March 2021, the Federal Supreme Court

had ruled that the only issue had been the timing of the sentence, not the best interests of the

children.

The Federal Supreme Court’s opinion that the mother had caused the separation is

incorrect when considered on the basis of a child rights-based assessment of the matter. A

court decision to sentence a primary caregiver to imprisonment arises from prosecution

proceedings. As such proceedings are an action initiated by a State party, they trigger certain

obligations under the Convention.

The Convention starts from the premise that children are rights holders separate from

their parents. It is therefore contrary to the spirit of the Convention to suggest that the rights

of children are negated by the misdeeds of their parents.

Article 3 (1) provides that in all actions concerning children, including those

undertaken by courts of law and administrative authorities, the best interests of the child must

be a primary consideration. It is therefore necessary to consider whether decisions relating to

the enforcement of the sentence of a primary caregiver are actions that “concern” children.

We have no doubt that they are, and we understand that the Committee majority shares this

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opinion, as set out in paragraph 9.3 of the Views. However, in this case, the majority found

that the State party had discharged its responsibilities adequately, and therefore that there had

been no violation.

We disagree, owing to the reasoning of the Federal Supreme Court that we have

outlined in paragraph 3 of the present joint opinion. While we acknowledge that it is generally

for the national authorities to examine the facts and evidence and to interpret and apply

national law, it is the task of the Committee to verify that the authorities’ assessment was not

arbitrary and did not amount to a denial of justice, and to ensure that the best interests of the

children were a primary consideration in that assessment. The Federal Supreme Court clearly

stated that the matter was purely about timing, and not about the best interests of the children.

In our view, this is a misreading of article 3 (1), under which the best interests of the child

must be a primary consideration in all actions concerning children. The imprisonment of a

primary caregiver is an action initiated by the State that separates children from the person

who cares for them on a daily basis, and decisions regarding the execution of the sentence

flow from that action. Of course, a court must weigh the various competing interests, and

may come to a decision that the best interests of the child are outweighed in a particular set

of circumstances. However, a court cannot from the outset decide that the child’s rights are

extinguished by the caregiver’s criminal behaviour. Where the State’s actions remove the

child’s primary caregiver, or even when they merely threaten to do so, the State has an

obligation to ensure that the best interests of the child are considered.

Article 12 of the Convention requires that States parties assure to children the right to

express their own views in all matters affecting them. It is clear to us – and indeed to the

Committee majority, as indicated in paragraph 9.3 of the Views – that the removal of a child’s

primary caregiver is a matter that affects that child. In determining the best interests of the

children, and in understanding the impact that the imprisonment will have on the children, it

essential to hear their views. In this case, the children were capable of forming their own

views. Under article 12 (2), children may be provided the opportunity to be heard either

directly or through a representative. We see no evidence that the Federal Supreme Court, in

the decisions referred to in paragraph 3 of the present joint opinion, considered the views of

the children either directly or through a representative.

In the light of the above, we would have found violations of articles 3 and 12 of the

Convention.

Volltext (verifizierbarer Originaltext)

GE.25-03019 (E) 010425 020425

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child on a

communications procedure, in respect of communication

No. 153/2021*, **, ***

Communication submitted by:

A.M. and E.P. (represented by counsel,

Benedikt Schneider)

Alleged victims:

The authors

State Party:

Switzerland

Date of communication:

20 July 2021 (initial submission)

Date of adoption of Views:

27 January 2025

Subject matter:

Children’s right to visit and contact their mother

in detention; terms of detention

Procedural issues:

Exhaustion of domestic remedies; manifestly

ill-founded submission; victim status

Substantive issues:

Best interests of the child; right of the child to be

heard in any judicial and administrative

proceedings affecting the child; prolonged

separation of children from a parent in detention

who is their primary caregiver; discrimination

Articles of the Convention:

2, 3, 9 and 12

Articles of the Optional Protocol:

7 (d), (e), (f) and (h)

1.1

The authors of the communication are A.M., born on 30 January 2007, and E.P., born

on 26 September 2013, both nationals of Switzerland. They claim that their rights under

articles 2, 3, 9 and 12 of the Convention would be violated if the State Party continued to

separate them from their mother, A.P.W., who is detained. The authors request that the

* Adopted by the Committee at its ninety-eighth session (13–31 January 2025).

** The following members of the Committee participated in the examination of the communication:

Suzanne Aho, Aïssatou Alassane Sidikou, Thuwayba Al Barwani, Hynd Ayoubi Idrissi, Mary Beloff,

Rinchen Chophel, Rosaria Correa, Bragi Gudbrandsson, Sopio Kiladze, Benyam Dawit Mezmur,

Otani Mikiko, Luis Ernesto Pedernera Reyna, Ann Skelton, Velina Todorova, Benoit Van Keirsbilck

and Ratou Zara.

Pursuant to rule 8 (1) (a) of the Committee’s rules of procedure under the Optional Protocol to the

Convention on the Rights of the Child on a communications procedure, Philip Jaffé did not participate

in the examination of the communication.

*** A joint (dissenting) opinion by Bragi Gudbrandsson, Luis Ernesto Pedernera Reyna, Ann Skelton,

Velina Todorova and Benoit Van Keirsbilck is annexed to the present Views.

United Nations

CRC/C/98/D/153/2021

Convention on the

Rights of the Child

Distr.: General

7 March 2025

English

Original: French

CRC/C/98/D/153/2021

GE.25-03019

Committee grant them interim measures, in particular that their mother’s sentence of

imprisonment be commuted to semi-detention closer to them or to monitoring by means of

electronic tagging. The authors are represented by counsel. The Optional Protocol entered

into force for the State Party on 24 July 2017.

1.2

On 27 July 2021, in accordance with article 6 of the Optional Protocol, the Working

Group on Communications, acting on behalf of the Committee, requested the State Party to

take the necessary measures to enable A.M. and E.P. to visit their imprisoned mother

regularly, taking into account their status as minors and their wishes and interests.1

1.3

On 13 August 2021, the State Party informed the Committee that, after spending a

brief period in the secure enforcement regime at the Grosshof correctional facility in Lucerne,

A.P.W. had been transferred to an open enforcement regime at the Hindelbank facility. Under

national law, all women prisoners are entitled to outings after serving 2 months of their prison

sentence, and to release on temporary licence after serving one sixth of their sentence.2 Thus,

since 16 April 2021, A.P.W. has been entitled to outings and release on temporary licence.

The sentence enforcement system at the Hindelbank facility provides for an inmate’s transfer

to external accommodation as the final stage of the open enforcement regime. This becomes

possible no earlier than 18 months before the person has served two thirds of his or her

sentence (15 July 2023, in the present case), at which point parole may be granted. Once half

the sentence has been served, the person may be transferred to a day release employment

programme. The person works outside the prison and lives in a supervised environment

overseen by the Hindelbank facility. This option has been available to A.P.W. since

15 October 2022. The possibility of parole will be considered on 15 July 2023.

1.4

The State Party points out that the Hindelbank facility specializes in the enforcement

of sentences and measures for women. Many of the women held there are mothers, and the

facility allows generous contact between them and their children. In its submission, the State

Party explains the general rules governing visits and contact, the options being visits to the

establishment, telephone calls, mail, release on temporary licence and outings. A.P.W. is

being held in an open enforcement regime and has so far used almost all her outings and

leave to see the authors. As soon as she can be transferred to external accommodation, she

will be able to host the authors for weekend visits. As the external accommodation unit is

currently being renovated, it will not be possible to transfer her before February or March

2022. The authors visited their mother in the Hindelbank facility on 2 April 2021 and 12 May

2021. Distance and timing (the authors are available on Wednesday afternoons) have been

difficult to coordinate and are the reason why other visits have not taken place. A.P.W. has

one slot on Mondays, Thursdays, Fridays and Saturdays, two slots on Tuesdays and

Wednesdays and, from time to time, three 20-minute slots on Sundays for telephone calls.

She uses these time slots to call the authors, and also receives regular calls from them.

1.5

Since 16 April 2021, A.P.W. has been entitled to release on temporary licence. The

cantonal authorities had suspended release on temporary licence until 29 April 2021 owing

to the health crisis. The first outing, which lasted five hours, took place in May 2021. To date,

A.P.W. has been granted three 5-hour outings and two 32-hour periods of release on

temporary licence. She spent two of the three outings and both periods of release with the

authors.

1.6

The enforcement authority allowed A.P.W. to postpone serving her sentence by nearly

a year, to enable her to arrange for the optimal care of the authors. As she was not cooperating,

however, it had been necessary to put in place an emergency solution. A.M. lives at a

boarding school and spends weekends either at the boarding school or with a friend of her

mother’s or with her father. E.P. was initially taken in by a foster family. Since August 2021,

he has lived with his maternal aunt in the canton of Valais. The children’s guardian has stated

before the competent authority that a good solution has been found for each of the children.

They can talk to their mother by phone every day and see her in the setting described above.

Visits are arranged between A.P.W. and her sister or a friend. The current possibilities for

1 This arrangement should not give rise to an additional burden for either A.M.’s boarding school or

E.P.’s foster family.

2 In accordance with the directive of 19 November 2012 of the Concordat Conference of the

Northwestern and Central Switzerland Concordat on the enforcement of sentences and measures.

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GE.25-03019

contact and the care arrangements for the authors ensure that their relationship with their

mother is maintained, while respecting their best interests. Thus, in the opinion of the State

Party, additional measures are neither necessary nor appropriate.

Factual background

2.1

On 3 July 2014, the Criminal Court of the canton of Lucerne found A.P.W. guilty of

repeated infringements of article 19 (2) of the Federal Act on Narcotics and Psychotropic

Substances of 3 October 1951 and handed down a custodial sentence of 5 years and 6 months.

A.P.W. was also convicted of money-laundering for a second time, for which she received a

suspended sentence of 60 day fines of 30 Swiss francs (SwF) each. A.P.W. appealed this

decision to the Lucerne Cantonal Court, which upheld the guilty verdicts but reduced the

sentence to a 3-year term of imprisonment, including 12 months’ imprisonment unsuspended

and 24 months’ imprisonment suspended, with a probation period of 3 years and a suspended

fine of 50 day fines of SwF 80 each. On 12 July 2017, on appeal by the Office of the Public

Prosecutor, the Federal Court referred the case back to the Cantonal Court for a new decision

on the sentence. On 21 November 2017, the Lucerne Cantonal Court handed down a custodial

sentence of 4 years and 6 months, less 138 days spent in pretrial detention, with 50 day fines

of SwF 30 each, suspended for three years.

2.2

By a decision of 26 February 2019, the start of the custodial sentence was set for

25 March 2019. A.P.W. appealed this decision to the Department of Justice and Security of

the canton of Lucerne on 19 March 2019. On 15 May 2019, the Department rejected the

appeal and set the start of the sentence for 9 July 2019. On 5 June 2019, A.P.W. appealed to

the Lucerne Cantonal Court, which dismissed the appeal on 14 November 2019 and set the

start of the sentence for 28 January 2020. A.P.W. appealed this decision to the Federal

Supreme Court. On 24 January 2020, the Federal Supreme Court granted suspensive effect

to the appeal. On 17 August 2020, it rejected her appeal. In this decision, the Federal Supreme

Court held that the plaintiff had caused her own separation from her children and that neither

she nor the children were entitled to alternative judicial enforcement. The children have not

brought proceedings on their own behalf. Furthermore, the children are not directly affected

by the decision, since they themselves will not be imprisoned. On 2 September 2020, the

Enforcement and Probation Service of the canton of Lucerne set the start of the sentence for

22 September 2020.

2.3

A.P.W. filed appeals with the Department of Justice and Security of the Canton of

Lucerne on behalf of the authors, complaining of the disproportionately short time between

the date of the judgment and its enforcement, and the violation of the children’s best interests,

the rights of the child and the rights of the family, owing to the separation and the terms of

her detention. She also stated that E.P.’s father had died and that A.M. would be undergoing

a serious operation in October 2020. By a decision of 14 October 2020 handed down by the

Department of Justice and Security of the canton of Lucerne, these appeals were rejected and

A.P.W.’s detention was set for 1 December 2020. The suspensive effect of any appeal was

withdrawn. By an order dated 16 November 2020, the Lucerne Cantonal Court rejected a

request to restore suspensive effect. An appeal against that decision was rejected by the

Federal Supreme Court in its ruling of 26 November 2020.

2.4

On 1 December 2020, A.P.W. began serving her sentence at Grosshof prison. A.M.

was placed in a boarding school and E.P. in a foster home. Only a few visits to their mother

were able to be organized. Visits took place behind glass, with little or no physical contact

owing to the coronavirus disease (COVID-19) pandemic.

2.5

On 12 March 2021, the Federal Supreme Court ruled that the authors were not the

recipients of the enforcement order and were not directly or immediately concerned by it;

they therefore had no right of appeal because they had no status as a party. Indeed, the

children would be only indirectly affected by their mother’s imprisonment and would only

have the status of third parties. The only issue was the timing of the sentence, not the

children’s best interests. Nor were the children entitled to the appointment of a legal

representative, as out-of-home placement was a secondary consequence of their mother’s

sentence.

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2.6

A.M. suffers from a hereditary muscular disease with progressive scoliosis and

occasionally urinates in bed. E.P. suffers from a sleep disorder. When their mother began

serving her prison sentence, the children, who are particularly in need of protection, were

placed with other people. Theoretically, Hindelbank prison, where their mother is being held,

allows around four hours of visits per month. The prison is about two hours away by car or

public transport, and the authors are not allowed to make visits unaccompanied. The primary

caregiver’s care function has thus been completely interrupted, an interruption that has been

imposed without regard for the child’s well-being, even though other forms of enforcement

of the sentence could be used.

Complaint

3.1

The authors claim that the administration, the Lucerne Cantonal Court and the Federal

Supreme Court denied them their procedural rights and failed to take into account their best

interests in the enforcement of their mother’s prison sentence, and also failed to provide them

with an opportunity to be heard.

3.2

The authors submit that the contested enforcement decisions violate their rights under:

(a) article 12 of the Convention, in that they were not heard, they were not notified of the

decision, they were not able independently to represent their rights in the proceedings, they

were not afforded procedural rights and no payment was made for legal costs; (b) articles 3

and 9 of the Convention, in that their best interests were disproportionately violated by their

placement with a third party, separated from each other (this applies to both the order and the

act of separation); and (c) article 2 of the Convention, in that the children were separated

from their mother through no fault of their own and without necessity, and therefore suffer a

significant developmental delay compared to other children.

3.3

In its decisions of 17 August 2020 and 12 March 2021, the Court is said to have

violated the authors’ rights in the criminal proceedings, since they were not treated as subjects

of law, were not heard and were not able to exercise their procedural rights. Neither their

rights nor their interests were taken into account and included in court decisions.

3.4

The authors note that, as children, they are seriously and directly affected by the

enforcement order issued against their mother. They add that children should be heard as a

matter of urgency before such a decision is taken and should be included in the proceedings

as a separate legal entity. The best interests of the child are upheld if the sentence is served

near to where the children live, making regular visits possible, and if the sentence is served

by means of an electronic tag or in semi-detention. In this context, it is irrelevant whether a

national legal basis exists or not. The absence of a legal basis is not the fault of the child

concerned. The best interests of the child as a general legal principle are also upheld in

international instruments that have been ratified and therefore have constitutional status. It is

contrary to a child’s best interests to be completely separated from his or her parents.

3.5

The authors ask the Committee to take steps to ensure that the State Party upholds

their best interests as children and their rights in this case and takes account of them in the

federal decision. They also ask it to ensure that the rights of the child are effectively respected

in similar cases involving the detention of parents of minors, including by genuine inclusion

in the process and safeguarding of the best interests of the child in sentence enforcement.

They further ask it to award appropriate compensation to the parties. Neither A.P.W. nor the

authors have any assets or income.

State Party’s observations on admissibility and the merits

4.1

On 28 March 2022, the State Party submitted a factual update. It notes that A.P.W.

has been detained in execution of her custodial sentence since 1 December 2020. On

4 December 2020, she lodged an application with the European Court of Human Rights,

claiming a violation of rights under article 6 (1) on the right to a fair trial and article 8 on the

right to respect for private and family life of the Convention for the Protection of Human

Rights and Fundamental Freedoms (European Convention on Human Rights). On

11 February 2021, the Court found that the evidence before it did not disclose any appearance

of a violation of the rights and freedoms set out in the Convention and that the application

was inadmissible. On 7 December 2020, the Lucerne Cantonal Court dismissed A.P.W.’s

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appeal. The appeal against this ruling, lodged with the Federal Supreme Court, was rejected

by the latter on 12 March 2021.

4.2

The State Party maintains that A.P.W.’s custodial sentence was imposed by a decision

of 21 November 2017 and that the authors failed to submit a communication to the

Committee on the matter within the time limit set out in article 7 (h) of the Optional Protocol.

Therefore, the sentencing cannot be the subject of the present proceedings.

4.3

The State Party also points out that the authors’ communication relates to decisions

that became final with the Federal Supreme Court’s rulings of 17 August 2020 and 12 March

2021. These decisions concern the sentence enforcement order, that is to say the date on

which the sentence was to begin and the facility in which it was to be served. The domestic

proceedings did not cover the terms of the enforcement, in particular visiting rights and leaves

of absence. Should the authors wish to contest them, they have separate domestic legal means

at their disposal for this purpose. Similarly, decisions concerning the placement of the authors

come within the jurisdiction of the child and adult protection authority and are not the subject

of the present proceedings. Authors should avail themselves of the domestic remedies

available if they intend to contest them. These elements go beyond the scope of the dispute

and cannot be examined by the Committee in the present case.

4.4

According to the European Court of Human Rights, persons claiming to be victims

must be able to show that they were directly affected by the measure complained of.3 While

the Court admits certain exceptions concerning the right to life or the prohibition of torture,

such exceptions are in principle excluded with regard to the other articles of the European

Convention on Human Rights. Thus, in a case concerning the deportation from Switzerland

of a father who had been convicted of drug offences, the Court found that neither the wife

nor the children of the complainant were threatened with deportation, that they were not

parties to the domestic proceedings and that their arguments before the Court were entirely

consistent with those of their father or husband. The Court held that the complainant’s wife

and children, who were minors, did not have standing to file, on behalf of the complainant, a

complaint relating to the right to respect for private and family life that they were invoking.

It found that their claims were incompatible ratione personae with the European Convention

on Human Rights. The present case concerns the enforcement of A.P.W.’s custodial sentence.

The authors were not parties to either the criminal proceedings or the first set of domestic

proceedings concerning the enforcement of the sentence. In the second set of domestic

proceedings concerning the enforcement of the sentence, the Federal Supreme Court noted

that the authors were not recipients of the enforcement order and were not directly affected

by it. As they were not parties to the proceedings, they did not have standing to appeal.

Accordingly, the present communication should be declared inadmissible as it is

incompatible ratione personae with the Convention on the Rights of the Child.

4.5

With regard to the exhaustion of domestic remedies, the State Party asserts that the

authors’ care, as arranged for by the child and adult protection authority, and the conditions

for authorized visits to the Hindelbank prison were not the subject of the domestic

proceedings, which related solely to the enforcement of A.P.W.’s sentence, that is to say the

date and place of her detention. The authors have not exhausted domestic remedies regarding

their complaint.

4.6

As regards the alleged violation of article 2 of the Convention, the authors do not

explain how the contested decisions are discriminatory and incompatible with the safeguards

set out in this provision. The complaint must be declared inadmissible under article 7 (f) of

the Optional Protocol.

4.7

The State Party states that the authors were not parties to the domestic proceedings.

Insofar as they were indirectly affected by decisions, their interests were represented by their

mother. The mother has repeatedly raised the issue of their interests, and they have been duly

taken into account by all the authorities involved. The authors’ interests were identical to

those of their mother. The authors do not claim that there was a conflict of interest or the risk

of a conflict of interest between their views and those of A.P.W. The authors do not allege

3 European Court of Human Rights, İlhan v. Turkey, application No. 22277/93, Judgment, 27 June

2000, para. 52.

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that their mother did not properly represent their interests. They do not indicate what

additional evidence they might have presented, nor to what extent their hearing might have

affected the establishment of the facts or the proceedings. The State Party states that, for

several years prior to the start of her custodial sentence, A.P.W. had experienced difficulties

in providing care for the authors and required the support of the child and adult protection

authority. The authority had appointed a guardian for the children, who was involved in the

proceedings before the Enforcement and Probation Service. The start of the custodial

sentence was postponed by nine months so that the best possible care could be arranged for

the authors. Holding hearings for children can adversely affect them and may not necessarily

be in their best interests if, as in this case, their interests are known and a hearing is not likely

to provide clarifications relevant to the issues raised by the case. The State Party is satisfied

that the authors’ interests were adequately and sufficiently represented by their mother and

that there was no violation of article 12 of the Convention.

4.8

The Committee has already stated that its role is not to interpret national laws or to

assess the facts of the case and the evidence in place of the national authorities but to ensure

that their assessment was not arbitrary or tantamount to a denial of justice and that the best

interests of the child were a primary consideration in that assessment. 4 In assessing and

determining the best interests of the child, account must be taken of the child’s views, having

regard to his or her age and maturity, the child’s identity, including his or her ethnic, cultural,

religious and linguistic background, the preservation of the family environment and the

maintenance of relations, the child’s protection and safety, the child’s situation of

vulnerability, the child’s state of health and the child’s education.5 In weighing the various

elements, one needs to bear in mind that the purpose of assessing and determining the best

interests of the child is to ensure the full and effective enjoyment of the rights recognized in

the Convention and its Optional Protocols, and the holistic development of the child. 6

Separation may be necessary if a parent is detained. Under article 9 (3) of the Convention,

States parties shall respect the right of the child who is separated from one or both parents to

maintain personal relations and direct contact with both parents on a regular basis, except if

it is contrary to the child’s best interests.

4.9

The State Party has provided details of A.P.W.’s criminal activities, noting the large

quantities involved and the extensive scale of operations. The Lucerne Cantonal Court took

into account the fact that A.P.W. had acted for purely financial reasons. Without being

addicted to drugs herself, she had endangered a large number of people. The Court was of

the view that the gravity of the acts corresponded, in the abstract and in application of the

scale developed by the Federal Supreme Court, to a custodial sentence of 6 years. This

sentence was reduced to 4 years and 6 months, in particular to take account of the fact that

the enforcement of the sentence would lead to a separation between A.P.W. and the authors.

4.10

Custodial sentences must be enforced qualitatively and quantitatively; this applies to

all convicted persons, regardless of the circumstances. The constitutional principle of

equality before the law also applies to the enforcement of sentences.7 Semi-detention and

electronic monitoring can be authorized only in the case of custodial sentences not exceeding

12 months, provided other conditions are also met.8 Community service is possible only in

the case of custodial sentences of no more than 6 months. 9 A departure from the rules

governing the enforcement of custodial sentences in favour of an inmate may be permitted if

the inmate’s state of health so requires; in the event of pregnancy, childbirth and for the time

immediately after childbirth; or to enable a mother and infant to be accommodated together,

provided this is also in the interests of the child.10 A child can be considered an infant within

the meaning of this provision until around 3 years of age. In this case, the length of the

sentence imposed did not allow for an alternative to detention. Given the authors’ age, the

conditions for an exemption under article 80 (1) of the Criminal Code were not met. In view

4 C.E. v. Belgium (CRC/C/79/D/12/2017), para. 8.4.

5 Committee on the Rights of the Child, general comment No. 14 (2013), para. 52 ff.

6 Ibid., para. 82.

7 Federal Supreme Court, decision of 17 August 2020, legal ground No. 3.2.1.

8 Criminal Code, art. 77b (1) and art. 79b (1) (a).

9 Ibid., art. 79a (1) (a).

10 Ibid., art. 80 (1).

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of the seriousness of the offences committed by A.P.W. and the heavy penalty imposed on

her, it was of substantial public interest that the sentence be served. In accordance with the

principle of proportionality, inmates’ rights may be restricted only to the extent required by

the deprivation of liberty and the proper functioning of the facility in which they are held.

Inmates have the right to receive visits and maintain relations with the outside world, and

contacts with their loved ones must be facilitated. Release on temporary licence must also be

granted within the appropriate framework. The State Party notes that the Committee’s

recommendations do not call for States to waive the enforcement of custodial sentences in

all cases where the convicted person has dependent children. The separation of the authors

from A.P.W. was necessary within the meaning of article 9 (1) of the Convention.

4.11

As soon as the Cantonal Court’s ruling of 21 November 2017 came into force, A.P.W.

knew that she would have to serve her sentence. On 17 May 2018, the Enforcement and

Probation Service met with her to discuss her family situation and the possibilities of finding

a home for the authors for the duration of her sentence. A.P.W. wished for them to be placed

with a foster family rather than in an institution. On 6 July 2018, the guardian informed the

Service that it was important that arrangements should be found for the children that were

appropriate for their situation and age and that they were on a waiting list to be placed with

a suitable foster family, which would probably be available by the end of March or April

2019. The Service postponed the start of the sentence for nine months, so that the best

possible care could be arranged for the authors. On 19 February 2019, the guardian informed

the Enforcement and Probation Service that it had not been possible to arrange for the authors’

placement in foster care because A.P.W. had not attended the scheduled interviews. The

guardian had contacted the child and adult protection authority and an emergency placement

of the children had been agreed in case A.P.W. was forced to serve her sentence. According

to the guardian, the risk of absconding could not be ruled out entirely. The Enforcement and

Probation Service decided not to postpone the start of the sentence any further. On

26 February 2019, it set 25 March 2019 as the start date. While custodial sentences must in

principle be carried out immediately, the competent authority took into account the best

interests of the authors by granting a nine-month postponement of their mother’s sentence. It

took into consideration A.P.W.’s family situation and gave her the time she needed to make

foster care arrangements. Its decision was motivated by the authors’ best interests. On

14 October 2020, the Department of Justice and Security took into account the fact that A.M.

was to undergo back surgery and set the start of the enforcement of the sentence for

1 December 2020, so that A.P.W. could be present during her daughter’s hospital stay and

give her support. That decision was also taken with the authors’ best interests in mind.

4.12

A.P.W. is being held in Hindelbank prison, in the canton of Bern. The journey from

Lucerne, where the authors live, to Hindelbank takes around an hour and a half by car or

public transport. There are only two women’s prisons: Hindelbank and Lonay, in the canton

of Vaud. Grosshof prison in Lucerne is recognized as a secure correctional facility for men.

It has a women’s section but, because of the services and work opportunities available,

women can be held there only for sentences of up to 24 months. The sentence must be served

progressively so that the detained person may be resocialized. However, Grosshof prison

does not allow for all the stages in the progressive enforcement of sentences. Given the length

of the sentence, it was not possible for A.P.W. to serve it in a prison located closer to the

authors.

4.13

The custodial sentence is carried out in the form of day release employment if the

inmate has served part of his or her sentence, generally at least half, and if there is no reason

to fear that he or she will abscond or commit further offences. In the case of day release

employment, the inmate works outside the facility and spends leisure and rest time in the

facility. Work outside the facility may also include housework and caring for children. If the

inmate demonstrates good behaviour in day release employment, the remainder of the

sentence is served through day release employment and external accommodation. The inmate

remains under the supervision of the enforcement authority. After serving half of her sentence,

A.P.W. could benefit from day release employment, be transferred to a location near to the

authors and take care of them. Electronic tagging may be ordered in lieu of day release

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employment and external accommodation for a period of between 3 to 12 months.11 If an

inmate has served two thirds of his or her sentence, provided this amounts to at least three

months, he or she is released on parole by the competent authority if this is justified by the

inmate’s conduct while in custody and it is not expected that he or she will commit further

felonies or misdemeanours.12 The enforcement of A.P.W.’s sentence does not imply that she

will be separated from the authors for the entire duration of the sentence. The child’s best

interests were taken into account to the fullest extent possible in the contested decisions,

particularly as the start of the sentence was postponed for several months to allow for optimal

care arrangements, and then again so that A.P.W. could be present for A.M.’s operation and

recovery. This case concerns only the decision to enforce the custodial sentence. Neither the

decisions concerning care for the children, nor the contact between A.P.W. and the authors

are the subject of the proceedings. If the authors’ care was not arranged entirely in accordance

with A.P.W.’s wishes, it was because she refused to cooperate with the guardian, believing

that her lawyer could prevent her sentence from being enforced. The State Party points out

that a guardian had been appointed for the authors several years before the enforcement of

the sentence because A.P.W. had been unable to manage their care alone. A.M.’s behavioural

problems led the guardian to secure appropriate care for her. Even before A.P.W. began

serving her sentence, A.M. lived at a specialized school, where she benefited from clear

structure and special support. This arrangement has been maintained while A.P.W. serves her

sentence. A.M. spends weekends at the boarding school, with a friend of A.P.W. or with her

father. When she has to see a doctor, her father takes her. E.P. has been living with A.P.W.’s

sister since August 2021 and attends public elementary school. He has adapted well and

shows no signs of abnormal behaviour. An optimal arrangement was found that meets their

needs and respects their best interests. Regular contact between the authors is also ensured.

Contrary to the authors’ assertions, the Hindelbank facility allows children under the age of

16 years to visit, without visiting quotas, to ensure the maintenance of a mother’s relationship

with her children and to enable them to have regular contact. The authors may call A.P.W.

every day.

4.14

The start of A.P.W.’s sentence was scheduled in such a way that she could be present

during A.M.’s stay in hospital and during the weeks of her recovery. Since her operation,

A.M. has been in good physical health. With regard to the death of E.P.’s father, it is clear

from the file that A.P.W. claimed, during the first appeal proceedings, that contact with the

authors’ respective fathers was not working at all and that E.P.’s father had left Switzerland

for the Dominican Republic. The authorities were of the view that, while his father’s death

must certainly have had a serious effect on E.P., it did not justify further postponement of the

start of the sentence. Lastly, the cantonal court reduced A.P.W.’s sentence to take account of

the fact that the enforcement of the sentence would lead to a separation between A.P.W. and

the authors. In view of the authorities’ efforts to take the authors’ best interests into account

at all times, the State Party argues that there was no violation of articles 3 and 9 of the

Convention. The authors’ complaint under article 2 of the Convention is ill-founded for the

same reasons.

Authors’ comments on the State Party’s observations

5.1

In their comments of 18 August 2022, the authors argue that the failure to grant

visiting rights and release on temporary licence, semi-detention and the use of an electronic

tag are the subject of the proceedings insofar as it has been asserted that their separation from

their mother was proportionate and that their rights were upheld in the enforcement of the

sentence. The circumstances and facility in which she is serving her sentence, the location of

the facility and the distance between it and the children’s places of residence are essential to

the question of proportionality and protection of the children’s well-being. The facility plays

a key role in determining the terms of sentence enforcement, contact with the children and

their well-being. The State Party has the option of setting up a special, proportionate

institution that safeguards children’s rights, and the law provides a solution through article

80 (2) of the Criminal Code.

11 Ibid., art. 79b (1) (b).

12 Ibid., art. 86.

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5.2

The authors submit that the State Party’s observations concerning their status as

victims are contradictory. On the one hand, the State Party states that the mother represented

the children’s interests, while on the other hand the children were not parties to either the

criminal proceedings or the initial domestic proceedings concerning sentence enforcement.

The authors’ rights have not been sufficiently taken into consideration. In the event of

separation between children and their parents by the State, the children affected are, or should

always be, parties to the proceedings. Although the authors were not part of the initial

proceedings, they criticize the fact that they were not included in accordance with the rights

of the child. The authors were parties to the proceedings concerning the date and choice of

the facility, the consequences for them of being separated from their mother, and the

possibilities of contact and visits.

5.3

The authors argue that the facility, date and location determine the terms of

enforcement of the sentence and, above all, the effective exercise of visiting rights, the

introduction of flexible measures, day release employment and the use of electronic tagging.

They had no other domestic remedies in respect of the consequences of the decision on the

date and the location of the facility. Family displacement was a direct consequence of the

choice of the facility, including its location and the date chosen for sentence enforcement.

The facility chosen meant that alternative care arrangements had to be made for the authors

and, because of the distance and the constraints, which were compounded by the COVID-19

pandemic, very few visits actually took place. It has been proved that the authors are at a

disadvantage compared to other children owing to the separation from their mother. They

argue that they have been discriminated against, in violation of article 2 of the Convention,

because E.P. no longer has a father and A.M. suffers from health problems.

5.4

This communication concerns the date, location and type of facility that together

determine the manner, contacts and terms of incarceration, and therefore the relationship and

contacts that the authors can maintain with their mother.

5.5

The authors claim that, as a result of the terms and location of the penal institution,

alternative care arrangements had to be made for them, visits could take place only very

rarely, and contact with their mother was sometimes interrupted for weeks on end, even

though it would have been conceivable and feasible to serve the sentence without placement

outside the home while safeguarding the children’s well-being by means of semi-detention

or electronic tagging. Because of the distance (an hour and a half away by car) and the

restrictions related to the COVID-19 pandemic, visits were infrequent and difficult. For the

first few days after the separation, A.P.W. was subjected to a form of isolation, with no

contact whatsoever with the authors. Later, contacts by telephone were difficult – in

particular emotionally for the authors – and very costly for the family. A.P.W. had to pay

telephone charges of around SwF 200 a month, while earning SwF 350 a month. Without the

help of the grandparents, such contact would not even have been possible. The authors

maintain that separation was unnecessary, that other forms of enforcement of the sentence

existed and that the place of enforcement chosen hindered contact and visits. With regard to

the start of the sentence, the authors assert that a nine-month deferment was not sufficient to

protect their rights, especially as it was already known that A.M. would need an operation.

This was taken into account only after a complaint was filed and only because the

proceedings took so long in the end. Regarding the choice of the prison, the authors note that

a travel time of one and a half hours means that each author and their respective supervisors

have to allow for at least four hours for a visit. Because of this distance, visits are rare. The

children cannot be blamed for the fact that there is no prison nearby, and other forms of

enforcement of sentences are not allowed.

5.6

As for the duration of the detention, the authors confirm that their mother is now in

the phase of her sentence during which day release employment is authorized. However,

because of the distance between the prison and the workplace, located in central Switzerland,

there are delays and difficulties; the external internship was approved only when her

employer created a post in Bern. It is not possible for the family to live together, and the

authors remain in the care of third parties. Semi-detention or a more flexible form of

deprivation of liberty will be possible as from November 2022. For lack of planning, the

earliest the family could be reunited is early 2023. This unnecessary two-month delay in

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family reunification demonstrates the fact that the rights of the child are not a priority, and

that the authors’ best interests are only a secondary consideration.

State Party’s additional observations

In its additional submissions of 7 July 2023, the State Party submitted that, with regard

to the available legal means to contest the terms of her detention, the visiting rights afforded

to her and the decisions concerning her semi-detention and the use of an electronic tag,

insofar as these aspects had not been determined in a decision subject to appeal, the authors’

mother could have requested such a decision on the basis of article 49 of the Act of 23 May

1989 on administrative procedure and jurisdiction of the canton of Bern, and subsequently

contested any negative decision, including by raising issues related to the Convention. The

possibility of appealing against the terms of detention is also clear from the documents

attached by the authors to their comments of 18 August 2022. For example, the general

decision of 3 January 2022 concerning the temporary restrictions imposed by the Hindelbank

facility to protect inmates in the context of the COVID-19 pandemic indicates the means of

appeal. Likewise, it is clear from the letter from the Enforcement and Probation Service of

the canton of Lucerne, dated 21 June 2022, that the competent authorities decide to grant

placement in external accommodation and day release employment in the form of electronic

tagging in a decision subject to appeal. With regard to the measures taken in respect of the

authors by the child and adult protection authority, the right to appeal against the decisions

in question is enshrined in article 314 (1), read jointly with article 450 (1), of the Swiss Civil

Code. Thus, the terms of the sentence enforcement, in particular the visiting rights and release

on temporary licence, and the measures adopted by the child and adult protection authority,

were not the subject, even indirectly, of the decisions challenged by the authors in the present

case. The authors’ claims in this respect thus go beyond the scope of the present dispute and

cannot be examined by the Committee. The State Party concludes that the authors have not

exhausted domestic remedies with regard to their claims concerning the terms of their

mother’s detention, the release on temporary licence granted and the measures adopted by

the child and adult protection authority.

Authors’ additional comments on the State Party’s observations

In their comments of 24 July 2023, the authors refer to a study of children whose

parents are in prison in which they took part.

Issues and proceedings before the Committee

Consideration of admissibility

8.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol,

whether the communication is admissible under the Optional Protocol.

8.2

The Committee notes that, in a decision dated 11 February 2021, the European Court

of Human Rights declared the application lodged by A.P.W. inadmissible because the

evidence before it did not disclose any appearance of a violation of the rights and freedoms

set out in the European Convention on Human Rights. In view of the fact that this complaint

concerned A.P.W. and not the authors, the Committee considers that the same matter is not

at issue within the meaning of article 7 (d) of the Optional Protocol and that this article

therefore does not preclude the admissibility of the present communication.

8.3

The Committee takes note of the State Party’s argument that A.P.W.’s custodial

sentence was imposed by a final judgment on 21 November 2017, whereas the authors

referred their communication to the Committee on 20 July 2021, that is, almost four years

later, significantly exceeding the one-year time limit after the exhaustion of domestic

remedies provided for in article 7 (h) of the Optional Protocol, and that the authors have not

demonstrated that it was not possible to submit the communication within that time limit.

The Committee observes, however, that the authors’ claims do not relate to the imposition of

A.P.W.’s sentence but to its enforcement. Accordingly, the Committee considers that it is not

precluded by article 7 (h) of the Optional Protocol from examining the present

communication.

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8.4

The Committee also takes note of the State Party’s argument that domestic remedies

have not been exhausted in respect of the claims concerning the authors’ care arrangements

and the arrangements for contact between them and their mother, including visiting rights

and release on temporary licence.

8.5

The Committee recalls that authors must make use of all judicial or administrative

avenues that may offer them a reasonable prospect of redress. The Committee is of the view

that domestic remedies need not be exhausted if, objectively, they have no prospect of success,

for example in cases where the claim would inevitably be dismissed under applicable national

laws or where established jurisprudence of the highest domestic courts would preclude a

positive result. Nevertheless, the Committee notes that mere doubts or assumptions about the

success or effectiveness of remedies do not absolve authors from exhausting them.

8.6

In the present case, the Committee notes that the authors’ claims relate to the Federal

Supreme Court’s decisions of 17 August 2020 and 12 March 2021, which concern the

enforcement of the sentence handed down, namely the date on which it was to begin and the

facility in which the sentence was to be served. It also notes the State Party’s argument that

the authors have made no attempt to lodge appeals relating to the terms of the sentence

enforcement or their care arrangements and have not offered any justification that such

appeals would be unlikely to succeed. However, the Committee observes that the authors’

complaint does not concern their placement, but the modes of enforcement of their mother’s

sentence. The Committee therefore concludes that the available domestic remedies have not

been exhausted and declares this part of the communication admissible under article 7 (e) of

the Optional Protocol.

8.7

The Committee notes the authors’ claims under article 2 of the Convention, insofar as

the authors were allegedly separated from their mother through no fault of their own and

without necessity and therefore suffer from a significant developmental delay compared to

other children. However, the Committee notes that the authors make these claims in general

terms and do not explain how the contested decisions are discriminatory. Therefore, it

declares these claims manifestly ill-founded and inadmissible under article 7 (f) of the

Optional Protocol.

8.8

The Committee takes note of the authors’ claims under article 12 of the Convention,

insofar as they were not notified of the decision, were not able to assert their rights

independently during the proceedings, were not granted any procedural rights, and were not

reimbursed for legal costs. However, the Committee notes that the authors were not parties

to the domestic criminal proceedings and therefore had no procedural rights. Therefore, it

considers that these claims are manifestly ill-founded and declares them inadmissible under

article 7 (f) of the Optional Protocol.

8.9

However, the Committee considers that the authors have sufficiently substantiated,

for purposes of admissibility, the remainder of their claims under articles 3, 9 and 12 of the

Convention relating to the fact that they were not heard in the decisions concerning the

enforcement order and that their best interests were not taken into account as a primary

consideration in the enforcement of their mother’s prison sentence, which adversely affects

their right not to be separated from her under article 9 of the Convention. The Committee

therefore declares this part of the communication admissible and proceeds with its

consideration on the merits.

Consideration of the merits

9.1

The Committee has considered the present communication in the light of all the

information made available to it by the parties, in accordance with article 10 (1) of the

Optional Protocol.

9.2

The Committee takes note of the authors’ claim that the State Party violated their

rights under articles 3, 9 and 12 of the Convention, as they were not heard by the domestic

authorities and that their best interests were not duly assessed in the proceedings for the

enforcement of their mother’s criminal sentence.

9.3

The Committee considers that, even if the authors were not parties to the domestic

criminal proceedings against their mother, these proceedings, including the enforcement of

the criminal sentence imposed on her, were a matter concerning them within the meaning of

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articles 3 (1) and 12 (2) of the Convention, since such proceedings would determine the extent

to which they could maintain contact with their primary caregiver. The Committee must

therefore determine whether, in the proceedings relating to the enforcement of the criminal

sentence imposed on the mother, the domestic authorities have taken into account the authors’

best interests and heard them, either directly or through a representative or an appropriate

body, in a manner consistent with the procedural rules of national law, as required by articles

3 (1) and 12 (2) of the Convention.

9.4

The Committee notes that a guardian had been appointed for the authors several years

before A.P.W. served her sentence, and that the guardian had been tasked with ensuring that

the children were placed in alternative care appropriate to their situation and age. It also notes

that, following consultations between the Prison and Probation Service and the children’s

guardian, the date of enforcement of the mother’s sentence was postponed several times, for

a total of nine months, in order to take account of the children’s specific situation. In this

regard, the Department of Justice and Security took into account the fact that A.M. had to

undergo back surgery and ultimately set the start of the sentence’s enforcement for

1 December 2020, so that A.P.W. could be present during her hospital stay, a decision that

was based on the court’s consideration of the authors’ best interests. The Committee further

notes the State Party’s argument that the Prison and Probation Service also held a meeting

with the mother about the family situation and the possibility of placing the authors in an

alternative care facility for the duration of the sentence. The Committee takes note of the

State Party’s argument that, in the present case, there was no conflict of interest between the

authors and their mother regarding the enforcement of her sentence in a way that would allow

them to maintain contact. It therefore concludes that the authors were able to be heard

indirectly by both their mother and their guardian, whose role made it possible to assess their

situation and interests separately. The Committee notes that the Enforcement and Probation

Service postponed the start of the sentence by nine months so that the authors could receive

optimal care.

9.5

With regard to the choice of prison, the Committee notes the authors’ claim that their

mother’s placement was far from their home and that this did not respect their best interests.

The Committee recalls that it is for the national authorities to examine the facts and evidence

and to interpret and enforce domestic law, unless their assessment has been clearly arbitrary

or amounts to a denial of justice. It is therefore not for the Committee to interpret domestic

law or to assess the facts of the case and the evidence in place of the national authorities but

to ensure that their assessment was not arbitrary or tantamount to a denial of justice and that

the children’s best interests were a primary consideration in that assessment. However, in the

present case, the Committee notes that the State Party has ensured that A.P.W.’s sentence is

served in a progressive manner that promotes her social reintegration and that, after serving

half of her sentence, A.P.W. can benefit from a work release scheme, be transferred close to

the authors and take care of them. It also observes that only two penal institutions in the State

Party are for women, as Grosshof prison does not allow for all stages of the progressive

enforcement of sentences. In this regard, it also notes the State Party’s argument that, given

the length of her sentence, it was not possible for A.P.W. to serve it in a prison closer to the

authors.

9.6

The Committee takes note of the authors’ assertion that visits were rare and

insufficient. However, it also takes note of the State Party’s assertion that regular contact was

maintained between the authors and A.P.W., contrary to what the authors claim. It notes in

particular that Hindelbank prison allows visits for children under 16 outside of the visiting

quotas and that the authors were able to call A.P.W. every day.

9.7

In light of the above, and on the basis of the information in the file, the Committee

cannot conclude that the State Party failed to give sufficient consideration to the children’s

best interests and to hear them in the proceedings for the enforcement of their mother’s

criminal sentence, or that it failed to take the appropriate measures to ensure the authors’

contact with their imprisoned mother.

10.

The Committee, acting under article 10 (5) of the Optional Protocol, is of the view