ECtHR - Muskhadzhiyeva and Others v. Belgium, Application No. 41442/07

Facts:

The Applicants, Aina Muskhadzhiyeva, born in 1966, and her four children (aged seven months, three and a half years, five and seven years at the material time) live in a refugee camp in Debak-Podkowa Lesna (Poland).

Having fled from Grozny in Chechnya they eventually arrived in Belgium on 11 October 2006, where they sought asylum. As they had spent some time in Poland, the Polish authorities agreed to take charge of them, by virtue of the Dublin Regulation. The Belgian authorities accordingly, on 21 December 2006, issued a decision refusing them permission to stay in Belgium and ordering them to leave the country. The Aliens Office summoned the Applicants, who had left their accommodation centre, in order to serve the decision on them. On 22 December 2006 they were placed in a closed transit centre run by the Aliens Office near Brussels airport, known as “Transit Centre 127 bis”, where aliens (single adults or families) were held pending their removal from the country. Several independent reports drawn up in recent years have highlighted the unsuitability of the centre in question for housing children.

A request to release the Applicants was rejected by the Brussels Court of First Instance on 5 January 2007 and again by the Brussels Court of Appeal on 23 January 2007. Between those two decisions the organisation “Médecins sans frontières” carried out a psychological examination of the Applicants and found that the children in particular – and especially the five year old girl – were showing serious psychological and psychotraumatic symptoms and should be released to limit the damage. On 24 January 2007 the Applicants were sent back to Poland. On the same day they lodged a cassation appeal. By a decision of 21 March 2007 the Court of Cassation found the appeal devoid of purpose as the Applicants had already been removed from the country. A report drawn up by a psychologist in Poland on 27 March 2007 confirmed the five year old girl's very critical psychological state and confirmed that the deterioration might have been caused by the detention in Belgium.

Decision & reasoning:

Article 3

Examining first the fate of the four children, the Court recalled that it had already found the detention of an unaccompanied minor in “Transit Centre 127 bis” contrary to Article 3 and that the extreme vulnerability of a child was paramount and took precedence over the status as an illegal alien. It was true that in the present case the four children were not separated from their mother, but that did not suffice to exempt the authorities from their obligation to protect the children. They had nevertheless been held for over a month in a closed centre which was not designed to house children, as confirmed by several reports cited by the Court. The Court also referred to the concern expressed by independent doctors about the children’s state of health. It found that there had been a violation of Article 3 in respect of the four children.

The Court then went on to examine the mother’s case, reiterating that parents should not always be considered victims of the ill-treatment inflicted on their children. They might qualify for victim status in some cases, but only where there were special factors that made the parents’ suffering different in scale and nature from the emotional distress inevitable in close relatives of victims of serious human rights violations. In Aina Muskhadzhiyeva’s case the Court found it decisive that she had not been separated from her children. Their constant presence must have somewhat appeased the distress and frustration of their detention in the transit centre so that it did not reach the level of severity required to constitute inhuman treatment. There had therefore been no violation of Article 3 in respect of the mother.

Article 5 § 1

The Applicants were in a situation where it was in principle possible under the Convention to place them in detention (the Convention authorises the “lawful arrest and detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”). That did not mean, however, that their detention was necessarily lawful.

In so far as the four children were kept in a closed centre designed for adults and ill-suited to their extreme vulnerability, even though they were accompanied by their mother, the Court found that there had been a violation of Article 5 § 1 in respect of the children.

The Court saw no reason, on the other hand, to find the mother’s detention in breach of the Convention. She had been lawfully detained with a view to her expulsion from Belgium. There had therefore been no violation of Article 5 § 1 in respect of the mother.

Article 5 § 4

It was true that the Court of Cassation had delivered its decision concerning the Applicants’ request for release after they had been sent back to Poland. Prior to that, however, two courts having de facto and de jure jurisdiction had examined the request without delay while they were still in Belgium. The Court pointed out that it was sufficient in principle for an appeal to be examined by a single court, on condition that the procedure followed had a judicial character and gave the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. That being so, none of the Applicants had been the victim of a violation of Article 5 § 4.

Outcome:

Violation of Articles 3 (prohibition of inhuman or degrading treatment) and 5 § 1 (right to liberty and security) (in respect to children).

No violation of Articles 3 and 5 § 1 (in respect to mother).

No violation of Article 5 § 4 (all Applicants).

The Court awarded the Applicants together 17,000 euros in respect of non-pecuniary damage.

Other sources:

Findings of the Delegate of the French Speaking Community Wallonia-Brussels on the rights of the child following his visit July 28, 2007 to the center.

Study on alternatives to detaining families in detention centers (report by the Audit Institute SUM RESEARCH, 2007).

Expert guidance of the Center of the Free University of Brussels for a Lebanese family with children detained at the center "127 bis".

Report of the LIBE Committee of the European Parliament of 28 May 2008.