ECtHR - V.M. and others v. Belgium, Application no.60125/11, 7 July 2015

Facts:

On the 1st of April 2011, the applicants, a family of seven of Roma origin and Serbian nationality, applied for asylum in Belgium. Their application was later refused and an order to leave the territory given by the Aliens Office on the basis of Article 16 (1)(e) of the Dublin II Regulation, whereby France was held to be responsible for the family’s asylum application.

According to the Aliens Office the family had applied for asylum in France in 2010. This application was later rejected and, contrary to the applicant’s submissions, the Aliens Office held that there was no proof that they had left the European Union territory after this decision. As a consequence Article 16(3) did not apply to their case.  A request for the prolongation of the order to leave the territory was lodged by the applicants pending an appeal against the Aliens Office before the Council of Aliens Law Litigation (CALL). Said prolongation was, however, refused and on the 26 September 2011 the applicants were told to leave the reception centre managed by Fedasil. Upon arriving to Brussels the applicants were notified by the agency for reception of asylum seekers that the Aliens Office had determined France to be responsible for the claim and as the appeal before the CALL did not have suspensive effect, the applicants were no longer entitled to reception. Whist the government claimed reception places were available 160km away from Brussels the applicants claimed that they were sent back to Brussels after having made the trip. The family lived for approximately three weeks in Brussels North railway station before their return to Serbia was arranged by a local charity under the Belgian federal return programme.

Two months after their return to Serbia, the eldest daughter, who was mentally and physically disabled, died due to a lung infection.

Before the European Court of Human Rights the applicants claimed that their exclusion from a reception centre was in contravention of Article 3 of the ECHR. Furthermore, the conditions of reception in Belgium led to the death of their eldest daughter, thus, Article 2 of the Convention had been breached. Finally the applicants advanced that they had been unable to have an effective appeal against their removal to Serbia on the basis of the risk to their eldest daughter’s life  and the risk of suffering inhuman and degrading treatment.

Decision & reasoning:

After providing a brief overview of ECtHR case law on the vulnerability of asylum seekers (M.S.S v Belgium and Greece and Tarakhel v Switzerland), as well as the treatment that could give rise to a violation of Article 3 (Svinarenko and Slyadnev v Russia), the ECtHR analyses domestic law on reception for those whose order to leave the territory has expired. Rejecting the proposition by the government that the applicants could have asked for social aid from the public centre for social action or a prolongation of aid from Fedasil, the Court stated that the facts took place at a time where reception in Belgium was limited and official policy was to exclude families whose order to leave had expired from the reception system. Moreover, any appeal against such a decision by Fedasil did not respond to the effectiveness requirements codified in the ECHR. Indeed, any appeal before the Administrative Tribunal in Belgium would have led to prolonged delays.

Noting that the applicants were not in a different situation to the Tarakhel family, in that the applicants in this case were also awaiting a final decision on their claim, the Court noted that a special protection is attributed to asylum seekers, which is all the more pronounced with regards to children and even more so where these children are new-born or disabled.

Finding that the living conditions after being expelled from the reception centre were particularly grave, with no assistance provided even for basic needs, the Court referred to the European Committee for Social Rights in Défense des Enfants International (DEI) v. Belgium who found that similar conditions violated the rights of the child. Interestingly the court notes that such a situation could have been avoided if the CALL had more swiftly treated the applicants appeal.

The Court further referred to CJEU jurisprudence, notably Cimade and Gisti as well as Saciri. According to the Court of Justice the reception conditions Directive specifies that Member States must provide to asylum applicants material aid, sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence, throughout the whole of the examination procedure. These Member States must also take into account the situation of persons with particular needs as well as the best interests of the child.

Finding that the Belgian authorities had not taken into account the vulnerability of the applicants on grounds of their status as asylum seekers and children, the Court found that Belgium was in dereliction of its obligation not to expose the applicants to extreme hardship. This remained the case notwithstanding the reception crisis at the time which created an exceptional situation in Belgium. On account of treatment which violated their intrinsic dignity as human beings, the threshold of gravity required for a breach of Article 3 had been met.

Citing Keenan v UK and De Donder and De Clippel v Belgium, the Court stated that in order for Article 2 of the Convention to be breached, Belgium knew or should have known that there was a real and immediate risk that the daughters health would decline after being evicted from the centre to such an extent that this could have led to her death.  In this case, the applicants had not shown beyond all reasonable doubt that the daughter’s death had been caused by conditions in Belgium, thus Belgium had not violated Article 2 in this respect.  

The Court lastly found the arguments of a violation of Article 13 in conjunction with 2 and 3 of the Convention to be arguable ones on account of the discrimination and ill-treatment meted out in Serbia to Serbian-Romas, documented by various reports. Focusing upon the general principles of an effective remedy the Court noted that a remedy must guarantee accessibility (including a consideration of linguistic obstacles, available information and material conditions (I.M. V France)), quality, rapidity and the appeal must have suspensive effect.

With regards to Belgian national law the Court noted that an appeal before the CALL is not suspensive. A request for suspension can, however, be made via two different channels, either an extremely urgent procedure or an ordinary suspensive procedure. The request for the former immediately suspends the transfer order but depends on the applicant being placed in detention. The second request does not have suspensive effect on the transfer order and is done only so that the right to request the suspensive effect under the extremely urgent procedure is ensured when the applicant is subject to detention.  This system, according to the Court, is highly problematic.

Firstly, a request for suspension may lead to an erroneous decision, especially where the substance of the appeal is later granted. Secondly, a request for suspension under the ordinary procedure does not guarantee the accessibility of an appeal in law and practice, given that the applicants were forced to return to Serbia without the substance of their claim being analysed by Belgium or France. Indeed the CALL later found that the Asylum Office had not established which legal base France was held to be responsible for the applicants.  The Court further noted the lapse of time between the request for suspension, the hearing and the final decision by the CALL, which was, in fact, favourable to the applicants. The Court found the appeal to be inadequate due to the length of time. Lastly, the Court noted that the applicants had applied for a residence permit on medical grounds, however the applicants were only notified of this decision during the proceedings before ECtHR. Thus they did not have an effective remedy to challenge this decision either. The Court, therefore, found the applicants to not have benefited from an effective remedy with regards to Article 3 and held that there was no need to assess the remedy claim under Article 2. 

Outcome:

The Court found a violation of Article 3 and Article 13 read in conjunction with 3.

The Court did not find a violation of Article 2 and Article 13 read in conjunction with 2. 

Subsequent proceedings:

The Grand Chamber panel of five judges decided on 14 December 2015 to accept the request of the Belgian government to refer the case to the Grand Chamber.  On the 17 November the case was struck out of the list since the applicants had not maintained contact with their lawyer. The Court found, therefore, that the applicants had lost interest in the proceedings and no longer intended to pursue the application.

Within the domestic setting the Belgian authorities have been condemned by domestic courts on the provision of reception. However the ruling  relates to (a lack of) accommodation provided at the time of lodging an application rather than pending an appeal.  

Observations/comments:

The judgment was accompanied by a third-party intervention from the NGO “Coordination et initiatives pour réfugiés et apatrides.” According to the NGO the facts of the case played out during a time of the reception crisis whereby there was a systematic policy by CPAS and Fedasil, in contradiction to the reception conditions Directive, to no longer accommodate families whose order to leave deadline had come to an end.

The judgment was also accompanied by dissenting opinions from Judges Keller and Kjølbro who found that there had been no violation of Article 3 of the Convention with regard to the conditions of reception as the applicants did have some access to support and social aid.

In addition judges Kjølbro, Keller and Sajo also found that there had been no violation of Article 13 in combination with Article 3 as regards the procedure for asylum and regularisation given that France was responsible for the applicants claims and “there is no basis for alleging that the processing of asylum requests or the conditions of reception for asylum seekers in France in general are deficient and not in conformity with the requirements of the Convention.”

For an analysis of the decision see V.M. and Others v. Belgium: The asylum law discourse reloaded, Salvo Nicolosi.

Other sources:

European Social Charter, Article 17

European Commission against racism and intloerance, (Serbia CRI(2011)21) May 2011 and initial report on Serbia 78 session, 14 February - 11 March 2011 (CERD/C/SRB/CO/1)

Commissioner for human rights of the Council of Europe, report on Serbia from 22 September 2011