SECOND SECTION

CASE OF V.M. AND OTHERS v. BELGIUM

( Application no. 60125/11 )

JUDGMENT

STRASBOURG

7 July 2015

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 17 /11/2016

This judgment may be subject to editorial revision.

In the case of V.M. and O thers v. Belgium ,

The European Court of Human Rights (Second Section) , sitting as a Chamber composed of:

Işıl Karakaş, President, András Sajó, Nebojša Vučinić, Helen Keller, Paul Lemmens, Egidijus Kūris, Jon Fridrik Kjølbro, judges, and Abel Campos , Deputy Section Registrar ,

Having deliberated in private on 9 June 2015 ,

Delivers the following judgment, which was adopted on th at date:

PROCEDURE

1 . The case originated in an application (no. 60125/11) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Serbian nationals, Mr V.M. and Mrs G.S.M. and their five children, S.M., E.M., S.M., E.M. and E.M.M., the last of whom died on 18 December 2011 (“the applicants”), on 27 September 2011 . The President of the Section acceded to the applicants ’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).

2 . The applicants were represented by Ms E. Neraudau, a lawyer practising in Nantes. The Belgian Government ( “ the Government ” ) were represented by their Agent, Mr M. Tysebaert , Senior Adviser, Federal Justice Department .

3 . The applicants alleged in particular that , on account of the reception conditions in Belgium and their “ forced” return to Serbia, the Belgian authorities had exposed them to a situation which endangered their lives and physical integrity (Articles 2 and 3 of the Convention) . They also complained that they had not had an effective remedy.

4 . The application was communicated to the Government on 4 February 2013 .

5 . The applicants and the respondent Government each filed written observations (Rule 5 4 § 2) . Observations were also received from the non ‑ governmental organisation Coordination et initiatives pour réfugiés et étrangers (“ Ci ré”), which had been given leave to intervene in the procedure (A rticle 36 § 2 of the Convention and Rule 44 § 2).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant s , Mr V.M. and Mrs G.S.M., and four of their children were b orn in 1981 , 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was also an applicant, was born in 2001 and subsequently died on 18 December 2011 after the application had been lodged.

A. T he applicants ’ movements prior to their arrival in Belgium

7 . The applicants are of Roma origin and were born in Serbia, where they spent the greater part of their lives. They explained that they decided to leave their country for Kosovo becaus e of the discrimination and ill ‑ treatment they had suffered on account of their origin in every sphere: access to the employment market, medical care, schooling difficulties and so forth.

8 . The eldest daughter of the first two applicants had been physically and mentally disabled since birth and had suffered from epilepsy.

9 . After failing to obtain a more secure situation for themselves in Kosovo, in March 2010 the applicants travelled to France, where they lodged an application for asylum. Their application was rejected by a final decision on 4 June 2010.

10 . The applicants stated that in the meantime they had returned to Kosovo, and then to Serbia, in May 2010 owing to the precariousness of their situation in France and their inability to provide for their essential needs.

11 . In March 2011, as their situation had not changed, the applicants decided to go to Belgium, where they lo dged an asylum application on 1 April 2011.

B. “ Dublin” procedure in Belgium

12 . During their interview with the “Dublin” department of the Aliens Office on 4 April 2011 the applicants gave an account of their movements to date and expressed their fears in the event of a return to Serbia. The first applicant stated that he had chosen to seek asylum in Belgium because he had been told that he could obtain better treatment for his disabled daughter there. He said that he was suffering from psychological problems. The second applicant said that Belgium had been the choice of the smuggler. When asked about her health, she replied that she was six months ’ pregnant. She also mentioned their eldest daughter ’ s health problems.

13 . The applicants maintained that they had explained the reasons why they refused to return to France, where they had been living in extremely precarious conditions. They submitted that they had not been asked to provide any evidence of having left the territory of the Member States of the Euro p ean Union (“EU”) o r regarding the family members ’ state of health .

14 . On 12 April 2011 the Belgian authorities sent France requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of the Member States of the EU for Serbia since their stay in France.

15 . On 22 April 2011, relying on Article 16 ( 3 ) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third ‑ country national (“the Dublin II Regulation”), France refus ed to take charge of the applicants on the grounds that the couple were considered to have disappeared since May 2010 because they had not collected the notice of final refusal of their asylum application dated 4 June 2010 and this corrobora ted their statements to the A liens O ffice according to which they had left the Schengen A rea in 2010 a nd re-entered it in March 2011, thus leaving for a period of more than three months .

16 . On 2 May 2011 the Belgian authorities asked the French authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member States for more than three months since their stay i n France and the applicants were clearly aware of the rejection of their asylum application i n France.

17 . On 6 May 2011 France accepted the request to take the family back pursuant to A rticle 16 ( 1 )( e) of the Dublin II Regulation .

18 . On 17 May 2011 the A liens O ffice issued decisions refusing the applicants leave to remain and ordering them to leave the country for France on the grounds that under A rticle 16 ( 1 )( e) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that France had agreed to take charge of the family . The de cisions indicated among other things that the family, who were originally from Kosovo, “had not furnished evidence of their stay” in Kosovo after staying in France nor any certificates regarding any medical treatment or care in respect of the pregnancy , or concerning the child or the father . Considering that France was a country which respected human rights , had democratic institutions, had ratified the Convention and the Geneva Convention on the Status of Refugees , and was bound to implement the d irectives of the European U nion on asylum and that if a return were to raise a problem under A rticle 3 of the Convention, the family could always lodge an application with the C our t for interim measures , the A liens O ffice considered that the Belgian authorities did not have to use the sovereignty c lause provided for in A rticle 3 ( 2 ) of the Dublin II Regulation .

19 . Accordingly , the applicants were ordered to leave the country within seven day s and to report to the French authorities at the border crossing . On the same day the applicants were issued with laissez-passer.

20 . On 19 May 2011 the applican ts , through their legal representative, contact ed the Aliens Office for the purposes of providing it with evidence that they had left the territory of the European Union for more than three month s ( gynaecologist ’ s certificate s , the second applicant ’ s health card and proof of enrolment at school of one of their children ).

21 . On 25 May 2011 execution of the orders to leave the country were extended until 25 September 2011 on account of the fact that the second applicant was soon due to give birth .

22 . On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board for the de cisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution . They argued that the decisions , with the reasons given therein , had not provided them with the examination required by A rticle 13 taken together with A rticle 3 of the Convention ( M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 336, ECHR 2011 ) of their fear s regarding a return to Serbia and of their health problems . Firstly, the reasoning was erroneous and incomplete ( error as to their nationality, identifying them as Kosovars instead of Serb s, failure to mention their return to Serbia and their Roma origin ). Secondly, they could not be blamed for having failed to provide, during their Dublin interview, documents certifying their health probl ems and their movements to date or for not having substantiated their fears regarding a transfer to France. Like all Dublin asylum-seeker s at that time, when they had attended those interview s they had not been assist ed by a lawyer or informed of the documents that they should bring and no document had been requested of them . As they had expressed their fears, the Belgian authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights . The applicants also argued that France should not have been determined as the State responsible for examining their asylum applications . Under A rticle 16 ( 3 ) of the Dublin II Regulation , the obligations regarding the determination of the State responsible ceased where the third-country national had left the territory of the Member States for at least three months . That was precisely the position the applicants had been in on account of their return to Serbi a from May 2010 to March 2011 as certified by the documents subsequently sent to the Aliens Office ( see paragraph 20 above ). Lastly , they submitted that the Belgian authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vuln erability and of the notoriously difficult situation of the Rom a minority in Serbia and of the conditions for the reception of asylum-seeker s in France.

23 . The hearing before the Aliens Appeals Board took place on 26 August 2011.

24 . On 23 September 2011 the applicant s unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before the Aliens Appeals Board .

25 . On 27 September 2011 the applican ts lodged an application with the Cour t for interim measure s suspend ing their transfer to France pending the outcome of the proceedings before th e Aliens Appeals Board .

26 . On 28 September 2011 the Cour t refused to indicate an interim measur e.

27 . In a judgment of 29 November 2011 the Aliens Appeals Board ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution .

28 . The Aliens Appeals Board dismissed the ground of appeal regarding the conditions of reception in France and based on the risk alleged by the applicant s of being exposed to treatment contrary to A rticle 3 of the Convention. It found as follows :

“ ... the Board cannot but observe that the applicants have failed to show that they encountered difficult ies in their dealings with the French authorities regarding access to health care for their child or their conditions of reception as asylum-seeker s . They have not adduced so much as a shred of evidence regarding the circumstances of the ill-treatment they have allegedly suffered and have merely asserted in their application , without substantiating this with the slightest evidence that could corrobor ate the facts, “ that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning” . M oreo ver, although their daughter ’ s disability had been specified in the “ Dublin form ” , the parties have not made any allegation whatsoever before the Aliens Appeals Board of encountering particular difficult ie s in the reception of asylum-seeker s as organis ed by the relevant French authorities.”

29 . The Aliens Appeals Board also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application, which had prevented it from checking whether the extracts produced did actually concern France.

30 . The Aliens Appeals Board set the de cisions a side, however, on the ground that the Aliens Office had not established the legal basis on which it considered that France was the State responsible for examining the applicants ’ asylum application .

31 . On 23 December 2011 the Belgian State lodged an appeal on points of law with the Conseil d ’ État against the Aliens Appeals Board ’ s judgment . It disputed the Aliens Appeals Board ’ s analysis of the applicable legal basis .

32 . In an order of 12 January 2012 th e Conseil d ’ État declared the appeal admissible . In a judgment of 28 February 2013 it rejected it for lack of current interest on the grounds that the operative provisions of the Aliens Appeals Board ’ s judgment were no longer a source of complaint for the ap plicants because they had returned to Serbi a and had left the territory of the Member States for more than three months with the result that Belgium was relieved of any obligation in the process of determining which Member State was respons i ble for their asylum application .

C. Application for regularisation of residence status on medical ground s

33 . In the meantime , on 22 September 2011, the applicants had lodged an application for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settl ement and Expulsion) Act of 15 December 1980 (“the Aliens Act”) on behalf of their eldest daughter . They referred to the extreme precariousness of their position and the discrimination they had suffered as Roms i n Serbi a and Kosovo. Citing several international reports in support of their submissions , they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter ’ s health condition . They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted i n Belgi um .

34 . On 30 September 2011 the Aliens Office declared their application inadmissible on the grounds that the medical certificat e of 26 June 2011 ( see paragraph 38 below ), produced in support of their application to have their residence status re gularis ed , certified the existence of a medical problem and stipulated the treatment considered necessary but , contrary to the requirements of section 9 ter § 3, 3 o of the Aliens Act , did not specify the degree of seriousness of the condition .

35 . The applicants indicated in their observations in reply that they had learnt of the existence of that de cision during the proceedings before the Cour t .

D. Reception in Belgi um and medical care

36 . On 1 Ap ril 2011 the Federal agency for the reception of asylum-seeker s (“Fedasil”) assigned the applica nts a reception facility as their mandatory place of registration, namely, Morlanwez asylum-seeker s ’ reception centre .

37 . The social worker from the centre took down the following account by the applicants of the conditions of their reception i n France:

“The family decided to leave France because they had no means of subsistence . They were living in a night shelter which they had to leave in the day . They and the children were out on the streets from 7 a.m . They had to use a pushchair as a wheelchair for S. , who is disabled . They had no information of any kind apart from the status of asylum-seeker which had been given to them on their arrival . No doctor, no social worker , no lawyer, no interpreter . They had absolutely no means of communi cation . They had no idea what they should do or what to expect . S. was not receiving any medical treatment of any kind . When her health deteriorated and she had to be taken to hospital , it was the mother ’ s sister who drove her to the emergency ward at the hospital and act ed as interpreter . Once at the hospital the little girl had [ epileptic ] fit s and her hair fell out . That was what decided the family to return to Serbi a” .

38 . The eldest daughter was examin ed on 26 June 2011 by a neuro ‑ psychiatr ist at Jolimont-Lobbes Hospital and a medical certificate was drawn up on that day certifying the child ’ s disabilities .

39 . In that certificat e , which was sent to the Aliens Office on 1 July 2011, the docto r noted that the child had “cerebral palsy with epilepsy” , suffered from “severe axial and peripheral hypotoni a” , that she could not sit up unassisted and soiled her underwear , that she could not talk and appeared not to understand other s. He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment ( orthopaedic braces , seat-brac e). Those medical findings were confirmed by a neurological exam ination carried out on 1 July 2011.

40 . The eldest daughter was admitted to hospital on 7 and 8 July 2011 for her epileptic fits and a neurological report drawn up .

41 . After the second applicant gave birth on 26 July 2011 the family were assigned a new reception centre on 5 August 2011 in an open centre suitable for families, in Saint-Trond in the province of Limbourg.

42 . On 26 September 2011, when the order extending execution of the order to leave the country expired , and as they could no longer benefit from material assistance for refugees , the applicants were removed from the Saint-Trond reception centre .

43 . The applicants travelled to Bru ssel s , where voluntary associations indicated a public square in the municipality of Schaerbeek, in the centre of the Brussels-Capital administrative district , where other homeless Roma families were also staying . They stayed there from 27 September to 5 October 2011.

44 . On 29 September 2011, through their legal representative , the applicants asked the French-speaking community ’ s General Delegate to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum-seeker s .

45 . On the s a me day th e General Delegate sent a letter to the Director-General of Fedasil requesting that accommodation be found urgently .

46 . A signed statement by the General Delegate date d 2 October 2011 indicated that he also contact ed the municipality of Schaerbeek in an attempt to find urgent accommodation for the family . According to the General Delegate , the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide , and Fedasil declared that it did not have power on account of the de cision taken by the Aliens Office regarding France ’ s responsibility for processing the asylum request ( see paragr aph 18 above ). Fedasil also stated that the application to the Aliens Appeals Board ( see paragraph 22 above ) was not of suspensi ve effect , which was why the reception centre had applied the rules terminating the right to material assistance .

47 . On 5 October 2011, following the intervention of the General Delegate , the Secretary of State ’ s office for Asylum and Migration, Social Integration and the Fight against Poverty instructed Fedasil to designate a reception centre as a matter of urgency .

48 . After spending two days at the transit centre of the Woluwe ‑ Saint ‑ Pierre municipality , also in the Brussels -Capital administrativ e district , on 7 October 2011 the applicants were assigned a new reception centre as a mandatory place of registration: the Bovigny reception centre for asylum-seeker s in the province of Luxembourg approximately 160 km from Brussels .

49 . The Govern ment maintained that the applicants had failed to register at the centr e. The applica nts, for their part , stated that they had gone there by t rain and a special bus but had been sent back to Brussels to Fedasil ’ s Dispatching Department on the grounds that thei r “annex 26 quater [ order to leave the country ] was invalid.”

50 . When they got back to Brussels on 7 October 2011 the applicant s got off the train at the Brussels G are du Nord , where they remained without any means of s ubsiste nce and with no accommodation despite the very cold weather for nearly three more weeks until their return to Serbi a was organised via a charitable organisation as part of the Fedasil return programme . The applicants left Belgium for Serbi a on 25 October 2011.

51 . In the meantime , on 12 October 2011, the applicants ’ mandatory place of re sidence had been changed to code 207 “no-show” ( see paragraph 81 below ) and on 25 November 2011 the applicants ’ names were deleted from the waiting register .

E. Return to Serbi a

52 . After their return to Serbi a their eldest daughter ’ s health deteriorated, forcing the applica nts to leave the room they had rented on account of the insalubrious conditions . They went to stay with a relative in Novi-Sad and then to the suburbs in Belgrade.

53 . The applicants ’ eldest daughter was admitted to hospital on 4 December 2011 suffering from a lung in fection. She died on 18 December 2011.

54 . In a letter to their lawyer of 21 November 2012 the applica nts stated that they had been attacked by Serb s on a number of occasions : among other incidents, some men had driven by in a car and broken the windows of their home by throwing stones , and had uttered threats , complaining of their links with the “Belgians” and ordering them to leave Serbi a . The first applicant had attempted to defend himself and been beaten up twice by his attackers .

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. “ Dublin” procedure for det ermin ing the responsibl e State

1. Proce dure before the Aliens Office

55 . In accordance with the Aliens Act, the A liens O ffice is the administrative body which determin es the State responsible for examining an asylum application under the Dublin II I Regulation ( formerly the “ Dublin II Regulation” , see paragraph s 100 - 02 , below ). The relevant provis ions of the Act governing the proce dure for determining the responsible State were the same as those described in M.S.S. v. Belgium and Greece , cited above (§§ 129- 35).

56 . Where another State has agreed to take charge or take back , the Aliens Office will serve a de cision on the asylum-seeker refus ing leave to remain and ordering him or her to leave the country. It issu es a document in accordance with the specimen document appearing in the annex 26 quater of the royal decree of 8 October 1980 on the admission, residence and expulsion of aliens . The Aliens O ffice indi cates which country is responsible for examining the asylum application and issues the asylum-seeker with a laissez-passer to enable him or her to enter the country in question .

2. Appeals to the Aliens Appeals Board

57 . Decisions taken by the Aliens Office may be challenged by appealing to the Aliens Appeals Board, which is an administrative court established by the Act of 15 September 2006 reforming the Conseil d ’ État and setting up an Aliens Appeals Board . The powers , jurisdiction, composition and functioning of the Aliens Appeals Board are governed by the provisions of the Aliens Act as amended by the aforementioned Act of 15 September 2006 . The procedure to be followed before the Aliens Appeals Board is governed by a royal decree of 21 December 2006 .

58 . An application to set aside is not an appeal on questions of both fact and la w. The review by the Aliens Appeals Board is a review of the lawfulness of the de cision being appealed against .

59 . An application to set aside does not suspend enforcement of the measure in question. However, the legislation provides that it may be accompanied by a request for a stay of execution of the measure, either under the extremely urgent procedure, which itself suspends enforcement of the measure, or under the “ordinary” procedure .

60 . At the material time applications for a stay of execution were governed by the provisions of section 39/82 of the Aliens Act, which reads as follow s:

“ 1. Where a decision by an administrative authority is subject to an application to set aside under section 39/2, the Board shall have sole jurisdiction to order a stay of execution.

A stay of execution shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned decision of the President of the division hearing the application or the aliens appeals judge whom he or she designates for the purpose.

In cases of extreme urgency a stay of execution may be ordered on an interim basis without evidence having been heard from some or any of the parties.

Applicants who request a stay of execution must opt for either the extremely urgent procedure or the ordinary procedure. They may not, simultaneously or consecutively, either seek a second time to have the third sub-paragraph applied or re-apply for a stay of execution in the application referred to in paragraph 3. Failure to comply may result in the request being declared inadmissible.

By way of derogation from the fourth sub-paragraph and without prejudice to paragraph 3, the rejection of a request for a stay of execution under the extremely urgent procedure shall not prevent the applicant from subsequently requesting a stay of execution under the ordinary procedure, where the application under the extremely urgent procedure was rejected on the grounds that the extreme urgency of the situation was not sufficiently established.

2. A stay of execution may be ordered only if the grounds relied on are sufficiently serious to justify setting aside the impugned decision, and if immediate execution of the decision is likely to cause serious, virtually irreparable harm .

Judgments ordering a stay of execution may be recorded or amended at the request of the parties.

3. Except in cases of extreme urgency, the request for a stay of execution and the application to set aside must be submitted in a single document.

The title of the application should specify whether an application to set aside is being lodged or a request for a stay of execution and an application to set aside . Failure to comply with this formality will result in the application being treated solely as an application for judicial review .

Once the application to set aside has been lodged any subsequent request for a stay of execution shall be inadmissible, without prejudice to the possibility for the applicant to lodge, in the manner referred to above, a fresh application to set aside accompanied by a request for a stay of execution, if the time-limit for appeals has not expired.

The application shall include a statement of the grounds and facts which, in the applicant ’ s view, justify a stay of execution or an order for interim measures, as applicable.

Any order for a stay of execution or other interim measures issued prior to the lodging of the application to set aside the decision shall be immediately lifted by the Division President who issued it or by the aliens appeals judge designated by him or her, if the judge observes that no application to set aside setting out the grounds for such measures has been lodged within the time-limit specified by the procedural regulations.

4. The Division President or the aliens appeals judge designated by him or her shall rule on the request for a stay of execution within thirty days. If a stay of execution is ordered a ruling shall be given on the application to set aside within four months from delivery of the judicial decision.

If the alien in question is the subject of an expulsion or removal order which is to be enforced imminently, and has not yet lodged a request for a stay of execution, he or she may request a stay of execution of the decision under the extremely urgent procedure. If he or she lodged a request under the extremely urgent procedure in accordance with the present provision no later than five days, but no earlier than three working days, following notification of the decision, the request shall be examined within forty-eight hours of its receipt by the Board. If the Division President or the aliens appeals judge concerned does not give a decision within that time, the First President or the President shall be informed and shall take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. They may even examine the case and take the decision themselves. If no stay of execution is granted the measure shall again become enforceable.

...”

61 . If the person concerned opted for the “ordinary” procedure, he or she could request interim measures, possibly as a matter of extreme urgency, in accordance with section 39/84 of the Act .

62 . For a request for a stay of execution or for interim measures to be granted as a matter of extreme urgency, the enforcement of the expulsion measure had to be imminent ( section 39/82, paragraph 4, seco nd sub ‑ paragraph , and section 39/85, first sub - paragraph , of the Aliens Act ). That requirement , inserted by the above-mentioned Act of 15 September 2006, was to be construed in the light of the interpretation of the concept of extreme urgency by the Conseil d ’ État , in particular in the judgments of the General Assembly of the Administrative Division of 2 March 2005 (nos. 141.510, 141.511 and 141.512) :

“[The applicant] must demonstrate that the ordinary procedure for a stay of execution would not be effective in preventing the serious damage alleged, bearing in mind the possibility of lodging a request for interim measures as a matter of extreme urgency during the proceedings ..., the two requests being then examined jointly.

...

It is common ground that, save in exceptional cases where orders to leave the country are accompanied by coercive measures with a view to repatriation, the opposing party does not systematically review their actual enforcement. Accordingly, a mere reference to an order to leave the country that has been issued is not sufficient to demonstrate the existence of extreme urgency.”

63 . Following this line of case-law, the Aliens Appeals Board took the view that, for the danger to be imminent, the alien in question had to be subject to a coercive measure aimed at securing his or her departure from the country. In the absence of such a measure, it consider ed that a situation of extreme urgency ha d not been established (see, among many other authorities, judgments nos. 456 of 27 June 2007 and 7512 of 20 February 2008) .

64 . Following the introduction of the present application the Aliens Act was amended by the Procedure before the Aliens Appeals Board and Conseil d ’ Etat (Miscellaneous Provisions) Act of 10 April 2014 .

65 . That Act reformed the procedure for applications for a stay of execution as a matter of extreme urgenc y in order to take account of the lessons drawn from M.S.S. v. Belgium and Greece , cited above , the subsequent case-law of the Aliens Appeals Board ( see , among other authorities , the seven judgments of the General Assembly of 17 February 2011, nos. 56.201 to 56.205, 56.207 and 56.208) and judgment no. 1/2014 of 16 January 2014 of the Constitutional Court . In that judgmen t, which dealt with an application to set aside the Act of 15 March 2012 amending the Aliens Act , which set up an expedited proc e dure for asylum-seeker s from “ safe ” third countries , the C onstitution al Court ruled among other things on whether applications to set aside and requests for a stay of execution under the extremely urgent procedure satisfied the criteria of effectiveness laid down by the Court ’ s case-law on A rticle 13 of the Convention taken in conjunction with A rticle 3 and set aside the Act in question in part .

66 . The above-cited provision s, as redrafted , provide that an application for a stay of execution under the extreme ly urgen t procedure must be lodged within ten day s, or five if the removal order in question is not the first to have been issued against the person concerned . The conditions for extreme urgency to be made out remain identical . Removal must be imminent, which mainly concern s detainee s ( see paragraph s 62 ‑ 63 above ). However , the Act does not preclude the possibility that other circumstances may justif y use of the extreme ly urgen t procedure . The re form also provides that there is a presumed risk of serious and irreversible harm if the violation alleged concerns a right from which no derogation is possible, such as A rticles 2, 3 or 4 of the Convention.

B. Proce dure for seeking leave to remain on medical ground s

67 . Section 9 ter of the Aliens Act provides for the possibilit y of applying for leave to remain on medical grounds . At the material time the relevant parts of this provision provided :

“1. Aliens resident in Belgium who provide proof of identity in accordance with paragraph 2 and who are suffering from an illness entailing a real risk to their life or well-being or a real risk of inhuman or degrading treatment if no suitable treatment exists in their country of origin or country of residence may apply to the Minister or his or her representative for leave to remain in the Kingdom.

The request must be made by registered letter to the Minister or his or her representative and must include the actual address of the individual concerned in Belgium.

The alien concerned must submit the request together with all the relevant information concerning his or her illness and the availability and accessibility of suitable treatment in the country of origin or the country of residence.

The alien concerned shall submit a standard medical certificate as provided for by royal decree approved by the Cabinet. The medical certificate shall indicate the illness, its degree of seriousness and the treatment considered necessary. ...”

68 . The proc e dure for examining the application for leave to remain involves two stage s. F irst , the Aliens Office examin es the admissibility of the application , particularly the information that must appear on the me dical certificate (indication of the illness , its degree of seriousness and the treatment considered necessary ) . In that connection the Aliens Appeals Board has explained that “ the intention [ of the legislature ] to clarif y the proce dure would be undermined if the Aliens Office were required to carry out a detailed examination of any medical certificat e produced and attached documents , in order to ascertain the nature of the illness , its degree of seriousness or the treatment considered necessary , whilst the [ official in question ] is neither a medical officer nor other designated doctor” ( see , in particular , Aliens Appeals Board , no. 69.508, judgment of 28 October 2011).

69 . The second stage , which concerns only applications that are considered admissible , consist s in an examination on the merits of the criteria set out in the Act by the Aliens Office on the basis of an opinion given by a medical officer or other designated doctor .

70 . An application may be lodged with the Aliens Appeals Board to have a decision taken by the Aliens Office on the basis of section 9 ter ( see paragraphs 57-58, above ) set aside .

C. Reception of asylum-seeker s

1. Public Social Welfare Offices Institutional Act of 8 July 1976

71 . The general princip l e, established by section 57 § 1 er of the Public Social Welfare Offices Institutional Act of 8 July 1976, is that anyone and any family is entitled to social support in the most appropriate form. This is provided by public social welfare offices established throughout Belgium and administered by the municipalities .

72 . The law provides for a derogation from this general princip l e with regard to foreign nationals illegally resident in Belgium . Section 57 § 2 1 o of the Institutional Act provides , by way of d e rogation from section 57 § 1, that the mission of the social welfare offices is limite d to granting urgent medical assistance to that category of person s where th e social welfare office has established that they are in need .

73 . In the case of families with children illegally resident in Belgium and whose state of need ha s been established by th e social welfare office ( section 57 § 2, 2 o ), social support is limited to the material assistance necessary for the child ’ s developmen t. It is granted exclusively in a reception centre run by Fedasil as provided for in section 60 of the “Reception” Act ( see paragraph 86 below ).

74 . The Royal Decree of 24 June 2004 setting out the terms and conditions for granting material assistance to foreign minors illegally resident with their parents in the Kingdom provides that in order to obtain this assistance an application must be made by the minor or by the family on his or her behalf to the social welfare office for his or her habitual re sidence. The social welfare office then carries out enquiries to check that all the statutory conditions are satisfied and makes its d e cision no later than o ne month following receipt of the application . Where the conditions are satisfied and the persons concerned undertake in writing to accept the proposed accommodation , the social welfare office inform s the applicant s that they can obtain material assistance in a reception centre . The applicant s must then report to the Dispatching Department of Fedasil ( see paragraph 79 below ).

2. The “Reception” Act of 12 January 2007

75 . The reception of asylum-seeker s is governed by the Reception of Asylum-seeker s and other Categories of Foreign Nationals Act of 12 January 2007 (“ the Reception Act ” ) which transpose s Council Directive 2003/9/ E C of 27 January 2003 laying down m inim um standards for the reception of asylum-seeker s in the Member State s.

a) Material assistance

76 . As y lum seekers and members of their family who have entered the Kingdom without satisfying the conditions for leave to remain and who lodge an asylum application with the Aliens Office have a right to reception , namely, material assistance enabling them to lead a life in keeping with human dignity ( section 1 of the “Reception” Act ).

77 . Material assistance includes accommodation ; meals; clothing ; medical , social and psychological care ; a daily allowance ; and access to legal aid and services such as interpreting and training ( sections 16 to 35 of the “Reception” Act ).

78 . In all de cisions concern ing minor s, the child ’ s interests are paramount ( section 37 of the “Reception” Act ).

b) Mandatory place of registrat ion

79 . Material assistance is granted by the reception facility or by the social welfare office designated by Fedasil as the “mandatory place of registration” ( sections 9 and 10 of the “ Reception ” Act ). Specifically , foreign nationals who have lodged an asylum application must go to the Dispatching Department of Fedasil located in the same building as the Aliens Office to request material assistance and be assigned a reception facility .

80 . All persons who have lodged an asylum application are recorded in a special regist er – the waiting register – which also records their place of mandatory registration under the code 207.

81 . Persons assigned a reception facility must re side in the designated facility in order to receive material assistanc e. If they do not reside there t he words “ no show ” will be filled in under code 207 and the rights of the persons concerned will be limited to urgent medical assistance pursuant to section 57 § 2 of the Public Social Welfare Offices Institutional Act of 8 July 1976 ( see paragraph 72 above ).

82 . In judgment no. 80/1999 of 30 June 1999 the Administrative Jurisdiction and Procedure Court ( now the Constitutional Court ) observed that section 57 § 2 could not be construed as applying to foreign nationals who, for medical reasons, were totally unable to comply with an order to leave Belgium and that a contrary interpretation would be discriminatory.

c) Duration of material assistanc e

83 . An asylum-seeker is eligible for m aterial assistance from the time of lodging his or her asylum application and that eligibility is effective throughout the asylum proceedings . Where the application for asylum is unsuccessful, material assistance will cease when the time-limit for complying with the order to leave the territory served on the asylum-seeker has expired . An appeal on points of law to the Conseil d ’ État will not trigger a right to material assistance unless the appeal is declared admissible ( section 6 of the “Reception” Act ).

84 . À t the time of the events in the present case Fedasil had interpr eted this provision to mean that reception facilities to asylum-seeker s under the Dublin procedure were in principle suspended on the expiry of the time-limit for complying with an order to leave the country issued in accordance with the specimen form provided in the annex 26 quater , from which time the persons concerned were regarded as illegally resident i n Belgi um . In line with its previous practic e, Fedasil ’ s instructions of 13 July 2012 relati ng to the cessation of material assistance were as follows :

“ An asylum-seeker ... who is served with an annex 26 quater may lodge an application to have the decision set aside and a stay of execution ... with the Aliens Appeals Board but such applications do not have suspensive effect and accordingly do not give him or her further entitlement to material assistance.”

85 . Material assistance may be extended in certain situations listed in section 7 §§ 1 er and 2 of the “Reception” Act, on condition that the asylum proceedings have ended with a rejection of the application and are not the subject of a de cision designating a State other than Belgium as responsible for processing the asylum application . Section 7 § 3 in fine provides that in special circ um stances relating to r espect for human dignit y Fedasil may d e rog ate from the conditions stipulated in section 7.

86 . Furthermore , under section 60 of the “Reception” Act , in respect of minors illegally resident with their parents on Belgian territory and whose state of need has been established by a social welfare office ( see paragraph 73 above ), Fedasil must continue to provide material assistance in the reception facilities run by the agency .

d) Medical care

87 . Beneficiaries of reception facilities are entitled to medical care necessary to lead a life in keeping with human dignity ( section 23 of the “Reception” Act ). This right extends to asylum-seeker s who are not resident in the reception facility assigned to them ( section 25 § 4).

3. Appeals

88 . In accordance with A rticle 580, 8 o of the Judic ature C ode, disputes relating to the application of the Public Social Welfare Offices Institutional Act and the “Reception” Act are heard by the relevant employment t ribunal. Accordingly, an appeal may be lodged with the employment t ribunal against a de cision – or even the absence of a decision – by a social welfare office or by Fedasil.

89 . Pursuant to A rticle 628, 14 o of the Judic ature C ode , the court of the appellant ’ s domicile, last place of re sidence o r , failing that , the place of his or her last occupation i n Belgi um has jurisdiction to hear the dispute .

90 . An appeal can be lodged in accordance with the relevant provisions of the Judic ature C ode, either in ordina ry proceedings ( writ of summons ) o r exception al proceeding s, that is to say , in urgent cases , in urgent proceedings by writ served by bailiff or, in cases of absolu t e n e cessit y , ex parte application . In the latter cases the applicant must provide reasons for the urgency or absolute n e cessit y and expl ain why the procedure by simple writ of summons does not offer a sufficiently rapid solution .

91 . If appropriate , the employment tribunal may impose a penalty in addition to an injunction . The injunctions are served on the social welfare office or on Fedasil by a ba i liff . According to common practice , the asylum-seeker is subsequently summon e d to be assigned a reception facility .

4. The “reception crisis”

92 . Between 2008 and 2013, and in particular i n 2011, the reception system for asylum-seeker s in Belgium reached “crisis” point on account of a substantial and exceptional increase in the number of asylum-seeker s and persistent saturation of the reception network run by Fedasil.

93 . In res ponse to the saturation of the reception network , interpreted as a cas e of force majeure , Fedasil gave instruction s , from Ap ril 2009, to no longer provide reception facilities to illegally resident families whose precarious situation had been established by a social welfare office ( see paragraph 73 above ), as such families were not considered a priority compared with asylum-seeker s and were not registered on a waiting list . An e xception was made in the event of an injunction , served by a bailiff , by the employment tribunals to provide reception facilities to these families to gether with a penalty for non-compliance ( Fedasil ’ s Annual Report of 2010) o r, from July 2011, in the event of i ntervention by the federal mediators . The instructions were extended in Ap ril 2010 to applications for an extension of medical assistance lodged by persons having received a n “ annex 26 quater ” .

94 . The Brussels social welfare office , one of the social welfare offices facing the highest demand , gave instruction s in an internal note , from Ap ril 2009, to refuse to examine applications by illegal residents and to redirect these to the Dispatching Department of Fedasil .

95 . The employment tribunals gave differ ing decisions regarding the question whether the social welfare offices or Fedasil should be ordered to provide assistance to illegally resident families . Some courts found against the social welfare offices ( for ex a mple the Liège Employment Tribunal in a judgment of 7 January 2010) on the grounds that Fedasil could rely on force majeure (saturation of the network ) for failing to grant material assistance . The social welfare offices were then obliged to provide assistance . In a situation of that kind the exception provided for in section 57 § 2 of the 8 July 1976 Act ( see paragrap h 73 above ) could not apply and reference had to be made to the general rule in paragraph 1 er of that provis ion, with the social welfare offices accordingly entitled to claim reimbursement of the expenses from Fedasil o r the Federal State . Other courts found against Fedasil on the grounds that it could not be a case of force majeure because the situation was foreseeabl e. The federal authority to which Fedasil belonged was obliged to provide the mean s necessary “ [ for the ] prop er functionin g [ of Fedasil] ” ( see , for ex a mple, Bru sse ls Employment Tribunal , ju d gment of 14 May 2009).

96 . The saturation of the reception network also caused major procedural difficulties . The employment tribunals differed in their practice regarding the correct avenue for appealing against d e cisions by Fedasil and the social welfare offic es. Whilst some accept ed applications lodged ex parte , others, such as those belonging to the Brussels judicial district ( which was the applicants ’ district ) , refus ed illegally resident families the use of ex parte applications ( see , for ex a mple, Brussels Employment Tribunal , 16 February 2011). Next , on account of the unmanageably high number of applications lodged with the Brussels courts ( which had jurisdiction because foreign nationals no longer entitled to reception facilities had elected domicile at the Aliens Office in Brussel s), the Pre sident of the Bru ssel s Employment Tribunal could take more than ten days to deliver an emergency order ( see , for exa mple, Brussels Employment T ribunal , 6 June 2011). Lastly , execution of the orders against Fedasil or a social welfare office could take up to between four and six week s after service .

D. D e tention of illegally resident families with children

97 . At the material time the Aliens Act allowed families with children whose residence had ceased to be lawful or had become unlawful to be placed in a closed facility .

98 . However , in practic e, since 1 October 2008 illegally resident families with children have no longer been placed in detention and open reception facilities have been made available to them pending enforcement of the removal me a sure.

99 . The princip l e of non-d e tention of illegally resident families with children was legally enshrined by the Act of 16 November 2011 inserting section 74/9 into the Aliens Act .

III. RELEVANT DOCUMENTS OF INTERNATIONAL AND NATIONAL COURTS

A. European Union law

1. Dublin Regulation

100 . At the material time the “Dublin” procedure was governed by Council Regulation ( E C ) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“ Dublin II Regulation” ).

101 . The main relevant provisions of the Dublin II Regulation are set ou t in M.S.S. v. Belgium and Greece , cited above (§§ 65-76). A rticle 16 ( 1 ) of that Regulation also provides that the Member State responsible for examining an asylum application under the Regulation must take back, firstly, an applicant whose application is under examination and who is in the territory of another Member State without permission (A rticle 16 ( 1 )( c)) and , secondly , a third ‑ country national whose application it has rejected and who is in the territory of another Member State without permission (A rticle 16 § 1 e)). The obligations specified in paragraph 1 cease where the third ‑ country national has left the territory of the Member States for at least three months (A rticle 16 ( 3 ) ).

102 . The Dublin II Regulation was recast by Regulation ( E U) No 604/2013 of the European Parl ia ment and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person , known as the “ Dublin III Regulation” . The main li nes of the recast are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 35-36, ECHR 2014 (extracts ).

2. Reception Directive

103 . Council D irective No 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum-seeker s in the Member States (“ the Reception D irective ” ) provides that the State s must guarantee asylum-seeker s

– certain material reception conditions, including housing, food and clothing, in kind or in the form of financial allowances; the allowances must be sufficient to protect the asylum-seeker from extreme need ;

– arrangements to maintain family unity ;

– medical and psychologi cal care ;

– access for minors to the education system, and to language classes where necessary for them to undergo normal schooling .

104 . The Reception D irective was recast by D irective No 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection , with a view to guaranteeing a common European system for the physical reception conditions and fundamental rights of asylum-seeker s , and ensuring that the administrative detention of asylum-seeker s is used only as a last res ort.

105 . In Cimade and Gisti (C-179/11, judgment of 27 September 2012), the Cour t of J ustice of the European Union (“ CJ E U ” ) specified that a Member State in receipt of an application for asylum was obliged to grant the minimum conditions for reception of asylum-seeker s laid down in the Reception Directive even to an asylum-seeker in respect of whom it decide d , under the Dublin II Regulation, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant (§ 50). That obligation ceased only when that applicant had actually been transferred by the requesting Member State (§ 58).

106 . In the case of Federaal agentschap voor de opvang van asielzoekers v . Selver Saciri, Sanijela Dordevic, Danjel Saciri et Sanela Saciri (C-79/13, judgment of 27 February 2014), a request for a preliminary ruling was made to the CJ E U by the Bru ssel s Employment Tribunal concern ing the arrangements for providing the physica l reception conditions. Basing its answer on the text of the Reception D irective a nd its scheme and purpose and stressing the importance of respect for fundamental rights , in particular respect for human dignity, the CJEU said that the asylum-seeker could not be deprived – even temporar il y after an asylum application had been lodged and before being actually transferred to the responsible Member State – of the protection of the minimum standards laid down by that directive (§ 35). With regard to the level of the physical reception conditions , the CJEU said that this must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence (§ 40). Furthermore, the Member States were required to adjust the reception conditions to the situation of persons having specific needs. The financial allowances also had to be sufficient to preserve family unity and the best interests of the child (§ 41). The CJ E U specified that where a Member State provided the se conditions in the form of financial allowances, those allowances had to be sufficient to enabl e them to obtain housing, if necessary, on the private rental market (§ 42). Where families were concerned , those allowances had to enable minor children of asylum-seeker s to be housed with their parents (§ 45).

3. Return Directive

107 . Directive 2008/115/ E C of the European Parl ia ment and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (“ the Return D irective ” ) governs removal and placement i n d e tention where necessary and provides for procedural guarantee s.

B. The European Social Charte r

108 . Belgium ratifi ed the European Social Charte r on 16 October 1990 and the revised European Social Charter (“ the revised Charter ” ) on 2 March 2004. It accept ed A rticle 17 of the revised Charte r which is worded as follows :

“With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed:

1. a . to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose ;

b. to protect children and young persons against negligence, violence or exploitation ;

c. to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family ’ s support ;

2. .. ”

109 . The European Committee of Social Rights (“ E C S R” ) ruled on Belgium ’ s compliance with its obligations under A rticle 17 of the revised Charter regarding the reception conditions of unlawfully present unaccompanied and accompanied foreign minors in the de cision of 23 October 2012, Defence for Children International (D C I) v . Belgi um , complaint no. 69/2011. The relevant extra c ts of the de cision read as follows :

“ 56. According to the DCI, however, because of the saturation of the reception network, FEDASIL has since 2009 been refusing to take in illegally resident families, as they are not prioritises as compared with asylum-seekers and are not registered on any waiting list. As a result of this situation, many families are forced to live in the street with their children. The public social welfare centres, which are competent at the municipal level, have also refused to intervene, referring the responsibilities to FEDASIL. The only legal possibility involves lodging a judicial appeal with the Labour Court in order to force FEDASIL to accommodate them. According to the organisation, 1773 illegally resident families had still not been granted accommodation on 30 September 2010 .

57. The DCI also alleges a targeted refusal to accommodate these families, such refusal being systematic even when the network is not saturated. ...

...

82. [ The] Committee considers that the fact that the Government has, since 2009, no longer guaranteed accompanied foreign minors unlawfully present in the country any form of accommodation in reception centres (through either through the FEDASIL network or other alternative solutions) breaches Article 17§1 of the Charter. The persistent failure to accommodate these minors shows, in particular, that the Government has not taken the necessary and appropriate measures to guarantee the minors in question the care and assistance they need and to protect them from negligence, violence or exploitation, thereby posing a serious threat to the enjoyment of their most basic rights, such as the rights to life, to psychological and physical integrity and to respect for human dignity. Similarly, the fact that at least 461 unaccompanied foreign minors were not accommodated in 2011 and the problems posed by inappropriate accommodation in hotels lead the Committee to the conclusion that the Government failed to take sufficient measures to guarantee non-asylum seeking, unaccompanied foreign minors the care and assistance they need, thereby exposing a large number of children and young persons to serious risks for their lives and health .

83. Consequently , the Committee holds that there is a violation of Article 17§1 of the Charter.”

IV. SITUATION OF THE ROM MINORITY I N SERBI A

110 . The European Commission against Ra cism and I ntol e rance (“ ECRI ” ) made the following findings in a report on Serbi a ( fourth monitoring cycle , CRI( 2011)21), published in May 2011 :

“ 62. NGOs estimate that two-thirds of the Roma population continue to live in informal settlements lacking schools, medical care, water, electricity and sewage facilities. These settlements are overpopulated and are at a great distance from basic facilities and services. In addition, the majority of Roma who live in these settlements do not have the relevant ownership documentation for their homes or land, thus compounding their housing problems. There are Roma settlements in all parts of Serbia with the majority being in Belgrade and in other larger cities and municipalities. The improvement of the living conditions in the settlements is one of the stated goals of the Strategy for Improvement of the Status of Roma and ECRI therefore hopes that the necessary resources will be allocated to measures taken to that end .

63. ECRI notes with concern that there is strong public opinion against relocating Roma. One specific problem is that when the Serbian authorities propose that Roma will be relocated to appropriate housing, the local population protests and refuses to agree to a Roma population moving into their neighbourhood. It thus appears that measures are still necessary to combat the intolerance and racism faced by Roma in the housing sector .

64. ECRI notes with concern that there have been many forcible evictions of Roma in and around Belgrade since its first report ... .

...

69. ECRI notes with concern that in many respects, the hygienic and sanitary conditions in many Roma settlements have not improved since ECRI ’ s first report. The health situation of Roma, in particular Roma women, children and elderly is particularly alarming and there is a difficulty in access to health care in the absence of the necessary medical registration. The mortality rate of Roma children in Serbia is four times higher than that of the general population.”

111 . In its concluding observations on the initial report o f Serbi a (CERD/C/SRB/CO/1 ; 78 th session, 14 February -11 March 2011), the Committee on the E limination of Racial D iscrimination expressed the following concerns and made the following recomm e ndations:

“ 14. The Committee is concerned that the Roma population, in many cases, lives in segregated settlements and experiences discrimination in respect of adequate housing and, in particular, is often subject to forced eviction with no provision of alternative housing, legal remedies, or compensation for damage and destruction of personal property. While noting with interest the Law on Social Housing, the Committee expresses concern about the particular difficulties faced by the Roma when applying for social housing programmes, resulting in a perpetuation of discrimination (arts. 2, 3, 5 (e) (iii) and 6 ).

The Committee urges the State party to ensure that any resettlements do not involve further forced evictions and that procedural protections which respect due process and human dignity be put in place. It recommends that the State party strengthen the measures aimed at improving the housing conditions of the Roma, and in this regard, recommends that it accelerate the implementation of the National Plan for Housing of Roma adopted in 2009. In light of the Committee ’ s general recommendations 27, paragraphs 30-31 (2000), on discrimination against Roma, and 32 (2009) on the meaning and scope of special measures, it also recommends that the State party intensify efforts to avoid residential segregation of minorities and encourages it to consider developing social housing programmes for the Roma.

15. The Committee expresses its concern that members of the Roma minority continue to experience segregation with regard to access to education. It is also concerned by the fact that Roma children returnees, upon readmission agreements from Western European countries, face additional difficulties in entering the Serbian educational system, due to inter alia enrolment and placement pr ocedures (art. 3 and 5 (e) (v)).

Bearing in mind its general recommendations 27, paragraphs 17-26 (2000) on discrimination against Roma, 32 on the meaning and scope of special measures, the Committee strongly urges the State party to address de facto public school segregation, and carry out the necessary measures to facilitate access to quality education including through anti-discrimination training for school staff and awareness-raising for parents, increasing the number of Roma teaching assistants, preventing de facto segregation of Roma pupils, and other measures for the promotion of inclusive education. It also encourages the State party to develop specialized and appropriate procedures for the reception, assessment and placement of children returnees and to increase the awareness of school teachers of the importance of such procedures.

16. While noting with appreciation the efforts taken by the State party to improve the situation of Roma, Ashkali and Egyptians and to prevent and combat racial discrimination against persons belonging to these groups, the Committee is concerned that they are subject to discrimination, prejudice, and stereotyping, in particular in access to employment, health care services, political participation and access to public places ( Article 2 , paragraph 2, and Article 5 of the Convention ).

Bearing in mind its general recommendations No. 27 (2000) on discrimination against Roma and No. 32 (2009) on the meaning and scope of special measures, the Committee encourages the State party to intensify its efforts to prevent and combat racial discrimination against Roma, Ashkali and Egyptians. It recommends that the State party ensure effective implementation of policies aimed at the equal enjoyment by Roma, Ashkali and Egyptians of the rights and freedoms listed in article 5 and special measures to advance their effective equality in employment in public institutions and adequate political representation at all levels. The Committee also encourages the State party to actively carry out campaigns that raise awareness of the difficult position of these groups, in particular the Roma, and build solidarity.”

112 . In his report published on 22 September 2011 following his visit to Serbi a from 12 to 15 June 2011 ( CommDH( 2011)29), the Commiss ioner for Human Rights of the Council of Europe made the following findings and expressed the following concerns :

“ 3. Human rights of Roma

82. In the 2002 census 108.193 persons, approximately 1.44% of the total population, identified themselves as Roma. The actual number is deemed to be much higher. According to the Serbian government ’ s estimates the actual number of Roma ranges from 250 000 to 500 000.

...

85. Notwithstanding the government ’ s efforts to improve the human rights of Roma, the problems facing Roma remain some of the most serious human rights challenges. The Commissioner underlines that the Roma-related projects must be accompanied by resolute efforts to combat prejudice and deep-seated stereotypes against Roma. Efforts are necessary to raise awareness among the Roma population on available mechanisms to combat discrimination. In this context, the Commissioner welcomes the Equality Commissioner ’ s activities organised in Roma settlements which aim to raise their awareness about the work of her office.

...

3.a . Access of Roma to health care

...

89. Despite the progress made in the area of health care, Roma still face barriers due to lack of information, lack of personal identity documents and poverty. The 2005 Law on Health Insurance aims to enhance access of Roma to health care, as well as to improve their living conditions. This law provides for the right to health care for members of vulnerable groups, including Roma.

90. In 2011 ECRI noted with concern that in many respects, the hygienic and sanitary conditions in many Roma settlements have not improved since ECRI ’ s first report in 2008. The health situation of Roma, in particular Roma women, children and elderly persons is particularly alarming due to the absence of necessary medical registration. According to UNICEF, although the official estimates show a decrease in Roma child mortality rates since 2005, this rate is still at least four times higher than the national average.

3.b . Access of Roma to quality education

...

94. However, it is estimated that the number of Roma children attending pre-school education is between 4% and 7%, while 66% of Roma children (as opposed to 94% of the total population) enrol in primary school. According to the Ministry of Education only 16% of Roma enrol in secondary schools, and less than 1% of young Roma attend college or university.

...

96. The Commissioner is seriously concerned by the fact that the number of Roma children enrolled in schools for children with mild mental disabilities increased from 26.7% in 2002/2003 to 31% in 2008/2009.

97. In 2011 ECRI expressed concerns that Roma children still face hidden and overt forms of discrimination by school authorities, school staff, teachers, other children and non-Roma parents. Reportedly, as teachers have lower expectations of Roma pupils, there is a tendency to use lower criteria when assessing their performance. The Commissioner is concerned by reports indicating that due to the increase in Roma children attending schools, there is a tendency among non-Roma parents to transfer their children to other schools with fewer Roma children.

...

3.c . Access of Roma to employment

99. ECRI reported in 2011 that Roma in Serbia continue to suffer from a high unemployment rate, low economic activity and almost total exclusion from the public sector. There are almost no Roma in public and state-owned companies, indicating a pattern of discrimination. There are cases where Roma who present themselves for job interviews are informed that the position has been filled, and a few cases of discriminatory job advertising. The majority of Roma are outside the employment system, employed illegally and mostly registered as unemployed.

3.d . Access by Roma to adequate housing

100. The majority of Roma in Serbia live in very poor housing conditions. The problems that Roma face in this field are related to the overpopulation of settlements due to the small number of available housing units, unresolved property issues and illegal constructions, and lack of access to public infrastructures. Some studies have indicated that out of the 593 existing Roma settlements in Serbia, 72% have not been legalised, while in Belgrade alone there are 137 informal settlements.

...

102. The Commissioner has noted with concern reports on the increased number of forced evictions of Roma from informal settlements in Belgrade. He is particularly concerned by the reported failure by the authorities to comply with legal safeguards during evictions. Physical attacks by state officials during evictions and destruction of personal property without compensation have also been reported in various cases such as the one concerning the evictions in the informal Roma settlement Gazela, Belgrade, on 31 August 2009. Following these evictions 114 Roma families were provided with accommodation in metal containers in settlements scattered around the outskirts of Belgrade.

...

106. The Commissioner is particularly concerned by the housing situation of the Roma displaced from Kosovo, and Roma who are being forcibly returned from Western European countries. Reportedly they make up around 17% of the Roma populations in informal settlements. They face the harshest living conditions. Their difficult situation is aggravated by the lack of personal identity documents (see also below, sub-section on lack of birth registration and personal identification documents among Roma). Prospects for their local integration are generally bleak.

107. The Commissioner noted that the living conditions in the informal Roma settlement in Marija Bursać, Blok 61, Belgrade, which he visited on 14 June, are clearly sub-standard and may be qualified as degrading. The settlement hosts approximately forty Roma families and consists of wooden barracks, some of which have been severely damaged due to bad weather. The settlement is not connected to the public utilities system and there are no electricity, water and sanitary facilities. Parents told the Commissioner that because of these living conditions sending children to school is a very difficult task. The Commissioner saw children from the settlement washing their faces with dirty water from a nearby polluted stream. The presence of rats was also reported by inhabitants. On the positive side, the Commissioner has noted that almost all of the inhabitants had obtained personal identity documents through the UNHCR ’ s EU-funded Roma Inclusion Project.”

THE LAW

I . ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (RECEPTION CONDITIONS)

113 . The applicants complained that their exclusion from reception facilities from 26 September 2011 onwards had exposed them to a life ‑ threatening situation and to inhuman and degrading treatment. They relied on Article 3 of the Convention, which provides:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

114 . The Government raised an objection based on non-exhaustion of domestic remedies. They submitted that the applicants should have relied on other provisions of the “Reception” Act and contacted the social welfare office having territorial jurisdiction. In the event of a refusal, an appeal lay to the relevant employment tribunal.

115 . The applicants submitted that they had been victims of a general problem related to the saturation of the reception network and that they had attempted – unsuccessfully – to use the only remedies available to them to prevent themselves from being removed from the reception centre and to find accommodation urgently .

116 . In the Court ’ s view, the questions raised by the Government ’ s preliminary objection partly overlap with those that it will have to consider when examining the merits of the complaints under Article 3 of the Convention. The objection shall accordingly be examin ed together with the merits of those complaints and examine d in this context.

117 . The Court also notes that this part of the application is not manifest ly ill-founded within the meaning of A rticle 35 § 3 ( a) of the Convention and is not inadmissible on any other grounds . I t must therefore be declared admissibl e.

B. Merits

1. The parties ’ submissions

a) The applicants

118 . Relying on Article 3 of the Convention, the applicants complained that their exclusion from the reception facilities from 26 September 2011 onwards had exposed them to a life-threatening situation and inhuman treatment. They explained that the situation had arisen as a result of a particularit y of Belgian law which was to terminate material assistance for Dublin asylum-seeker s on the date of expiry of the time-limit for complying with an order to leave the country (“ annex 26 quater ” ) without waiting for the conclusion of the asylum proceedings . Added to that was the fact that the appeal they had lodged against that decision had not been of suspensive effect , thus depriving them of any possibilit y of applying for a stay of ex e cution of the order to leave the country . They had thus found themselves “illegally resident” within the meaning of Belgian law whereas they had still been asylum-seeker s awaiting a final de cision regarding their application .

119 . They submitted that in addition to an application to set aside and obtain a stay of execution of the “annex 26 quater ” , they had instructed the social worker from the centre and their legal representative to use all the domestic remedies which , having regard to their status as “ illegal ly resident” had been available to them to prevent their removal from the reception centre or to find a solution with regard to accommodation : two applications to extend the order to leave the country; multiple and reasoned requests to the Aliens Office ; an application for leave to remain on medical grounds pursuant to section 9 ter of the Aliens Act ; and an application to the Aliens Appeals Board to process their case as a matter of priorit y . Every time they had produced all the evidence in their possession to establish their vuln e rabilit y . The authorities had failed to react, however, despite the urgent need to find a solution.

120 . After their removal from the accommodation centre, not speaking the language s of the country and having no means of subsistence , they had first roamed the streets before being directed to a publi c square in the centre of Brussels occup ied by other homeless members of the Roma minority of Serbi a . They spent eight days there , from 27 September to 5 October 2011, until their legal representative ’ s efforts to contact the General D elegate to the Rights of the Child resulted in their finding accommodation on 5 October 2011 for two days in a t ransit centre , also in the Brussel s-Capital district , and then space in the open centre of Bovigny. However , when they went there the accommodation was refused them on the grounds that their ord er to leave the country “was not valid” . When they got back to Bru sse ls the applicants disembarked at the G are du Nord where a Roma woman directed them to a charitable organisation. It was there that they learnt that their return could be taken charge of in the context of Fedasil ’ s “voluntary” programme , which they accept ed out of desperation , failing any other solution in Belgium and despite the pending appeals . The applic ants also explained that they had had to stay at the G are du Nord for a week , while their departure was organis ed for 25 October .

121 . The applic ants submitted that the other possibilit ie s of obtaining the assistance referred to by the Govern ment ( see paragraph 125 below ) were all bound to fail because of the rejection of their application by the Bruss els social welfare office , which was the office having territorial jurisdiction , and the policy implemented by Fedasil since 2009 of refus ing to take charge of families in their situation because the reception network was saturated . Furthermore , contra ry to the Govern ment ’ s assertions , they had not satisfied the conditions for requesting an extension under section 7 of the “Reception” Act because their asylum proceedings had not yet terminated and Fedasil had given instruction s back in Ap ril 2010 to refuse application of the mechanism for extending reception arrangements for foreign nationals who had received an “annex 26 quater ” and illegally resident families with minor children . With regard to the emergency medical assistance incumbent on Fedasil to provide , the applicants observed that it was reserved by law and practice to persons currently seeking asylum and was not granted to persons illegally resident in the country . The same was true of the emergency medical assistance that Brussels social welfare office refused to grant to illegally resident foreign nationals . The applicants pointed out that this analysis of the situation was supported by the signed statement of the General Delegate to the Rights of the Child which attested to the failure of hi s attempts to find a solution by contacting the social welfare office and Fedasil. The applica nts also submitted that appeals to the employment tribunals on the subject of reception facilities did not provide the guarantees of effectiveness required by the urgent situation in which they had found themselves .

122 . The applicants submitted that the situation they had experienced had been contrary to Ar ticle 3 of the Convention as interpreted by the Cour t in M.S.S. v. Belgium and Greece , cited above (§ 263). The state of extreme poverty and material and psychologi cal want in which the authorities had placed them , in full knowledge of their vulnerability as asylum-seeker s and as a family with young children including a severely disabled young daughter, had reached the threshold required by A rticle 3. The obligation to provide for the applicants ’ basic needs as asylum-seeker s had also been one of the positive obligations of the Belgian State under European law and more particularly the Reception D irective , which provided that Dublin asylum-seeker s had to continue being provided with reception facilities until they were actually transfer red to the responsible State , as had been confirmed by the CJ E U in Cimade and Gisti , cited above (§ 58) ( see paragraph 105 above ), and the revised European Social Charte r ( see paragraphs 108-09 above ).

123 . The applica nts submitted that the Belgian authorities had not appreciated the inevitably harmful conse quences for the children and had failed to give precedence to their best interests, whereas they should have acted on the presumption that the children were vuln erable both on account of their status as children and their personal background .

b) The Government

124 . The Govern ment submitted that the reception facilities made available to the applicants had been adapted to their situation. From the date o n which they had lodged their asylum application, on 1 Ap ril 2011, they had been given a place in a reception centre where their basic needs had been met in accordance with the “Reception” Act . Moreover , whilst the order to leave the country, which had been issued on 26 May 2011, should have put an end to the material assistanc e, the Belgian authorities had decided to extend the reception facilities in a suitable reception centre on account of the second applicant ’ s pregnancy and the birth . Once the provision of reception facilities on account of the status of asylum-seeker had ceased on 26 September 2011, the Belgian authorities had interven ed again, on humanitarian grounds , on 5 October 2011. A fter the applicants had spent two days at a place assigned to them at the transit centre of the Woluwe ‑ Saint-Pierre municipality, they had been assigned a place in Bovigny but had failed to go there. The Government could not but conclude that the applic ants had themselves caused the situation of which they complained, particularly as they had eventually decided of their own accord to participate in a voluntary return programme before the Aliens Appeals Board had even ruled on their appeal .

125 . The Govern ment acknowledged that the applica nts had been compelled to leave their accommodation on the expir y of the extended time-limit for executing the order to leave the country . In their submission, the Belgian authorities could not be blamed for having acted in accordance with the law without having regard to the clarification subsequently provided by the CJ E U . Moreover , the applica nts could and should have used the other possibilit ie s of obtaining assistance . They could have requested social support, pursuant to section 60 of the “Reception” Act , from the social welfare office having territorial jurisdiction o r a stay of application of section 57 § 2 of the Act of 8 July 1976 on grounds of impossibilit y of complying with the order to leave the country for medical reasons ( see paragraph s 73 and 86 below ). They could also have applied to Fedasil for an extension of material assistance pursuant to section 7 § 1 of the “Reception” Act having regard to the pr e sence of minor children o r a request for emergency medical assistance under section 25 § 4 of the “Reception” Act ( see paragraph s 85 and 87 above ). All de cisions taken regarding reception , or even the lack of a de cision, were amenable to an appeal to the employment tribuna l, in urgent proceedings where appropriate .

2 . Observations of the NGO Coordination et initiatives pour réfugiés et étrangers (Ciré ), third-party intervener

126 . The third-party intervener submitted that the facts dated back to a p eriod known as the “reception crisis” during which asylum-seeker s arriving i n Belgi um had encountered major difficult ie s in obt aining social assistance both from Fedasil, the agency in charge of providing material assistance in reception centres , and from the social welfare offices . They expl ained that the situation in which the applic ants and many other families had found themselves had been the result of an anomal y of Belgian law which , contra ry to the requirements of the Reception D irective, provided that reception facilities for asylum-seeker s in respect of whom the responsible State was being determined terminated whe n the time-limit for exe cution of the “ annex 26 quater ” e xpir ed and also of the systematic and structural position adopted from 2009 by Fedasil and the social welfare offices to no longer take charge of illegally resident families . Those families found themselves out on the street with no means of obtaining material assistanc e.

127 . I n 2 011 Fedasil had refus ed to provide reception facilities to 553 famil i es, which amounted to 2, 143 adults and 1,2 42 min o rs. A fter the employment tribunal had found against Fedasil and imposed a fine, the latter had eventually granted reception facilities to 43 of those familie s. Between March 2011 and May 2012 th e Fede ral Ombudsman had sent 18 recomm endations to Fedasil , of which 15 had been implemented .

128 . The third-party interven er observed that the principle of non ‑ refoulement was fully applicable to asylum-seeker s and that the refus al to provide physical reception facilities for vulnerable persons could amount to treatment contrary to A rticle 3 , as had been acknowledged by the Cour t in M.S.S v. Belgium . , but could also create particular probl em s regarding the principle that the child ’ s interests were paramount .

129 . Furthermore, failing de tention and thus an imminent ris k of removal within the meaning of the case-law of the Aliens Appeals Board illegally resident families did not have any means of appeal of suspensive effect against their removal , and had no material means of waiting for the outcome of the appeal d e termin ing the remainder of the asylum proceedings .

3 . The Court ’ s assessment

a) General principles

130 . The Cour t reiterates that the right to political asylum is not contained in either the Convention or its Protocol s ( see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09 , § 113, ECHR 201 2) and that the Contracting State s are entitled, subject to their treaty obligations, including those arising from the Convention, to control the entry, residence and removal of aliens ( see , among many other authoritie s, Ãœner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII ).

131 . In line with those obligation s, States mus t have particular regard to Article 3 of the Convention, which enshrines one of the fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or de grading treatment or punishment irrespective of the circumstances and of the victim ’ s conduct (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV ).

132 . The Cour t has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim ( see M.S.S. v. Belgium and Greece , cited above , § 219; Svinarenko and Slyadnev v. Russia [GC], no s. 32541/08 and 43441/08, § 114, ECHR 2014 (extracts ); and Tarakhel , cited above , § 94 ).

133 . Treatment is considered to be “degrading” within the meaning of Article 3 when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance ( see M.S.S. v. Belgium and Greece , cited above , § 220; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 202, ECHR 2012 ; and Svinarenko and Slyadnev , cited above , § 115 ).

134 . Appl ying those criteria to the question of living conditions, the Court had found – prior to M.S.S. v. Belgium and Greece , cited above – that it could not be excluded that the responsibility of the State might be engaged under A rticle 3 in respect of treatment where an applicant , who was wholly dependent on State support , found him or herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity . However , none of the factual situations examin ed had been considered by the Cour t to reach the threshold of severity required by A rticle 3 ( see , for ex a mple, Budina v . Russi a , ( dec .), no. 45603/05, 18 June 2009).

135 . With regard to an Iraqi national who had obtained provisional refugee status from the Office of the United Nations High Commissioner for Refugees and complained that he had been unable to provide for his essential needs in Turkey , the Cour t held that A rticles 3 and 8 of the Convention could not be interpreted as entailing any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living ( see Müslim v. Turkey , no. 53566/99, § 85, 26 April 2005 ).

136 . With M.S.S. v. Belgium and Greece , cited above , which concern ed an Afghan asylum-seeker who had been sent back to Greece by the Belgian authorities in accordance with the Dublin II Regulation , the Cour t initiated a change in its case-law . After noting that, unlike in the Müslim case, the obligation to provide decent material conditions to impoverished asylum-seeker s had entered into positive law, the Cour t held that , in d e termin ing whether the threshold of severity required by Art icle 3 had been attained , particular importance had to be attached to the applicant ’ s status as an asylum ‑ seeker . Accordingly, he belonged to a particularly underprivileged and vulnerable population group in need of special protection . It note d the existence of a broad consensus at the international and European level concerning this need for special protection ( see M.S.S. v. Belgium and Greece , cited above , § 251).

137 . When assessing the applicant ’ s individual situation , the Cour t held that the national authorities had not had due regard to that vulnerability and that the seriousness of the impoverished situation in which the applicant had found himself, having remained for several months with no means of providing for his essential needs, combined with the inertia on the part of the asylum authorities, had amounted to a violation of Article 3 of the Convention ( see M.S.S. v. Belgium and Greece , cited above, §§ 262- 63; see, following M.S.S. , Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07 , § 283, 28 June 2011 , and F.H. v. Greece , no. 78456/11 , § § 107 ‑ 11, 31 July 2014 ) .

138 . In cases concerning the reception of accompanied or unaccompanied minors , the Cour t has also established that the relevant authorities should consid er that the status of child prevailed over that of illegal immigrant ( see Muskhadzhiyeva and Others v. Belgium , no. 41442/07 , §§ 55 and 63, 19 January 2010 ; Kanagaratnam v. Belgium , no. 15297/09 , § 62, 13 December 2011 ; and Popov v. France , nos. 39472/07 and 39474/07 , § 91, 19 January 2012 ). Recently , the Tarakhel case , which concern ed the planned return to Italy by the Swiss authorities under the Dublin II Regulation of a family of A f ghan nationals , gave the Court the opportunity to rule that the vuln e rabilit y of asylum-seeker s was accentu ated in the case of families with children and that the reception conditions for children seeking asylum must be appropriate for their age, to ensure that those conditions did not create for them a situation of stress and anxiety, with particularly traumatic consequences ( see Tarakhel , cited above , § 119).

b) Application of those principles to the present case

139 . The Govern ment submitted that the Belgian authorities had acted with all the necessary care to ensure that the applicants were provided with reception facilities , given that from the date on which they had applied for asylum – on 1 April 2011 – they had been assigned an a ccommodation centre where their essential needs had been catered for until 26 S eptemb er 2011.

140 . The Cour t observe s that this was not disputed by the applicant s. The subject of their complaint against the Belgian authorities was their inability during the period following their evi ction, on 26 September 2011, from the accommodation centre until their departure for Serbi a , on 25 October 2011, to obtain reception facilities enabling them to provide for their essential need s. The Cour t ’ s examination will therefore concern only the latter period .

141 . The Cour t note s th at th e parties disagree as to whether an obligation to continue p r oviding the applicants with accommodation and decent material conditio n s had entered into Belgian positive law and constituted an obligation on the Belgian authorities under European U nion law , namely, the Reception D irective ( see paragraph s 71, 75 and 103 above ; see , regarding the relevance of the question, M.S.S. v. Belgium and Greece , cited above , §§ 250 and 263, and S.H.H. v. the United Kingdom , no. 60367/10, § 90, 29 January 2013 ).

142 . The Cour t note s that under section 6 of the “ Reception ” Act of 12 January 2007, material assistance had to be granted throughout the entire asylum proceedings and terminate when the time-limit for complying with the order to leave t he country served on the asylum- seeker had expired . At the material time, in the context of the “reception crisis” , Fedasil had interpreted that provision restrictive ly with regard to asylum-seeker s who , like the applica nts, were subject to the Dublin procedure . Asylum-seeker s were deprived of material assistance on the expiry of the time-limit for complying with the order to leave the country accompa nying the de cision refus ing to examine their application on the grounds that another State was responsible for examining it , even where an appeal was pending against that de cision ( see paragraph 84 above ).

143 . The Cour t observes from the parties ’ description of the situation under Belgian law that it cannot be inferred from this that the applicants, as a family accompanied by minor children , including a severely disabled child , were unable , under Belgian law , to continue receiving any form of material and medical assistance . As submitted by the Govern ment themselves, the entire legislative apparatus formed by the “Reception” Act of 12 January 2007 o r the Public Social W elfare O ffices Institutional Act of 8 July 1976 was designed so that , in exceptional situations, such as that of the applicant s, material and medical assistance could in theory have be en extended .

144 . The Govern ment criticised the applicants, moreover, for not requesting assistance by tho se other means . In the Government ’ s submission, the applicants could, and should, have requested social support from the relevant social welfare office or applied to Fedasil for an extension of material assistance under section 7 of the “Reception” Act (see paragraph 85 above ). The applica nts submitted that, in practice , as the network had been saturated during the relevant period , those possibilit ie s had been bound to fail .

145 . The Cour t note s that the applicant s ’ all e gations are supported by the finding s made both by the players working o n the ground at the material time, including the third-party organisation, and by the domestic courts and relevant administrative authorities , particularly the Brussels social welfare office and Fedasil ( see paragraph s 92-95 above ). All the de cisions and reports consult ed reach the same conclusions on this point: at the material time the asylum-seeker s ’ reception network had become s aturat ed on account of a very high number of asylum-seeker s. In that context the policy followed by the Brussels social welfare office , which was the office having jurisdiction for the applicant s, and Fedasil was to exclu de from the reception facilities families accompanied by minor children who were in the applicant ’ s position, namely, illegally resident owing to an order to leave the country and pending a final decis ion in their asylum proceedings . The majorit y of the famili es concern ed were deprived of accommodation and any form of assistance whatsoever pursuant to the “Reception” Act or the Public Social Welfare Offices Institutional Act .

146 . Added to that is the fact that in the present case, contrary to the Govern ment ’ s submission , the applicants ’ representative and the French ‑ speaking community ’ s General Delegate to the Rights of the Child had contacted the relevant authorities in an attempt to find urgent accommodation for the applicant family ( see paragraph s 44 and 46 above ).

147 . In those circumstances the applicants can hardly be criticised for failing to seek a solution regarding where they were to live following their eviction from the accommodation centre .

148 . That conclusion remains unaltered by the fact, stressed by the Go vern ment, that the applica nts did not appeal to the employment tribunal against the lack of a de cision by Fedasil regarding reception facilities . Such proceedings , which could have been instituted under the urgent procedure or ex parte , do not satisfy the requirements of effectiv eness contained in the Convention. The applic ants and Ciré, the third-party interven er , have show n that in the context of the reception crisis the Brussels judicial district courts refus ed the use of ex parte proceedings to families in the same situation as the applic ants. With regard to the urgent proce dure , it is not disputed that if the applica nts had applied to the Pre sident of the Brussels Employment T ribunal under the urgent proced ure , in addition to the practical difficult ie s of appointing a lawyer and complying with the relevant time-limit s, they would have ha d to wait approximately ten day s at the material time to obtain an order . Moreover , and in any event , the de cisions examin ed by the Cour t ( see paragraph s 95-96 above ) show that at the relevant time the case-law of the employment tribunals was still inconsistent regarding acknowledgment of the right of reception of families who were “illegally resident” and subject to the Dublin procedure . Lastly , even supposing that the applic ants had been able to apply to t h e employment tribunal and obt ain an injunction against Fedasil to find them accommodation or incur a penalty , they would still have had to obtain exe cution of the injunction , which at the time could take several week s ( see paragraph 96 above ).

149 . In those circumstance s, being face d with that much uncertainty , the Cour t is of the opinion that neither can the applicants be criticised for failing to apply to the employment tribunal . It considers that in the light of their particula r situation and the specific circumstances of the reception network at the material time , the applica nts were dispensed from the obligation to use that remedy .

150 . The Govern ment submitted, lastly, that the applic ants had been partly responsible for thei r situation by failing to go to the accommodation centre that had been assigned to them after they had stayed at the transit centre on 5 and 6 O ctob er 2011, namely, the Bovigny centre . The applica nts claimed that they had gone to the centre assigned to them but had been sent back to Fedasil ’ s D ispatching Department on the grounds that their order to leave the country was no longer valid .

151 . The Cour t is clearly not in a position to ve rif y what actually happened . That said , the Cour t can well believ e that, given the circumstances , the applic ants, who were unfamiliar with the correct proc e dure, were overwhelmed and not in a position to use every p ossible means to find their way to a n accommodation centre located over 150 km from Bru ss els. The Cour t considers that this possibility should not be held against them and that it was rather for the Belgian authorities to show greater diligen ce in finding them accommodation .

152 . Having regard to the foregoing , the Cour t rejects the objection raised by the Govern ment, based on non- exhaustion of domestic remedie s ( see paragraph 114 above ).

153 . The Cour t next observe s that, for the purposes of A rticle 3 of the Convention, although they had received an order to leave the country , the applican ts had applied to the Belgian authorities for asylum and the proce dure to de termin e the State responsible for examining the ir application s had been under way . If that procedure is not to be deprived of all effectiveness as a result of a refusal to protect the most elementary of right s, the applic ants, like the applic ant in M.S.S. v. Belgium and Greece (§ 251), must be regarded as belonging to “a member of a particularly underprivileged and vulnerable population group in need of special protection” . As the Cour t observed in Tarakhel , cited abov e (§ 119), that requirement of “special protection ” is particularly important when the persons concerned are children . It is an even stronger requirement in the present cas e, in the Cour t ’ s view , given the pre sence of very young children, including a baby and a disabled child , who were themselves inherently fragile and more vuln e rable than adult s when faced with de privation of their basic needs .

154 . The fact that in the present case the applica nts were awaiting a final de cision regarding the de termination of the State responsi ble for examining their asylum application did not place them in a different situation from that of the applicants in the above-cited case s with regard to the Convention given that in none of those cases did the authorities of the returning State rule on the merits of the applicants ’ fears of treatment contrary to A rticle 3 of the Convention in the event of return to the country they had fled . The fact that in the instant case the French authorities had previously examin ed the asylum applications lodged by the applica nts before reje cting them cannot be taken into account since the applicants alleged before the Belgian authorities that they had arrived in Belgium after leaving th e territo ry of the European U nion for more than three months and had requested the protection of the Belgian authorities on the basis of a new situation.

155 . Lastly , and as a subsidiary consideration , the Cour t observes that the CJ E U ruled, in judgments of 27 September 2012 and 27 February 2014, admittedly delivered after the facts of the instant cas e, on the scope of the requirements of the Reception D irective in the situation in which the applicants found themselves her e. According to the CJEU , the Reception D irective required the Member States to gran t throughout the procedure determining the State responsible for examining their asylum application sufficient material assistanc e to ensure a dignified standard of living and adequa te for health and to ensure the applicants a means of subsist e nce and housing . Reception States also had to take account of the situation of persons with special needs and of the best interests of children ( see paragraph s 105- 06 above ).

156 . The Cour t must next rule , with regard to the case-law set out above ( see paragraph s 130-138 above ) on whether the conditions in which the applic ants were living in Belgium between 26 September and 25 October 2011 engage the responsi bilit y of the Belgian State under A rticle 3.

157 . With regard to the reality of the living conditions experienced by the applic ants, the Cour t note s that they were not the subject of dispute before it . The Govern ment acknowledge d that the applic ants were dependent on the reception facilities and were compelled to leave their accommodation on 26 S eptemb er 2011 pursuant to Belgian law . Nor did they deny that from that date onwards the applicants had found themselves without any means of subsist e nce and without accommodation , barring two nights in a transit centre.

158 . The Cour t notes that the situation experienced by the applica nts was a particularly serious one . They explained that when they left their reception centre on 26 September 2011 they found themselves out on the streets before staying i n a public square in the centre of Bru sse ls where other homeless people from Serbia ’ s Roma minorit y were already staying . They remained there – with no assistance to cater for their most basic need s ( eating , washing and housing ) – until 5 O ctob er 2011. The fact that the authorities had offered them accommodation at a reception centre did not alter the applicants ’ situation. A fter two nights in a transit centre and their return to Brussels on 7 O ctob er 2011, the applica nts disembarked at the G are du Nord in Brussels, where they stayed nearly three more weeks before their return to Serbia was organis ed by a charitable organisation.

159 . The Cour t observe s that th e seriousness of this finding echoes that of the European Committee of Social Rights, a body monitoring respect for human rights guaranteed by the European Social Charte r , which conclu ded, in a de cision of 23 O ctob er 2012, that this type of situation did not respect the child ’ s right to protection laid down by A rticle 17 § 1 of the revised Charte r ( case of Defence for Children International (D C I) v . Belgi um , complaint no. 69/2011, paragraph s 108 ‑ 109 above ).

160 . Admittedly , as submitted by the Govern ment, th at de cision was made after the facts of the present cas e. However , it is based on the same premise as that of the Cour t when it interpr ets A rticle 3 of the Convention, namely, the right s linked to the prohibition of all inhuman and degrading treatment are granted to individuals on account of the dignit y attached to the human being .

161 . Lastly , the Cour t note s that the predicament in which the applicants found themselves could have been avoided o r at the very least curtailed if the application to set aside and obtain a stay of execution of the de cisions refus ing leave to remain with an order to leave the country that they had lodged on 16 June 2011 had been processed more speedily by the Aliens Appeals Board , which did not rule until 29 November 2011, that is, more than two months after the applicants had been excluded from the reception facility and over a month after their de part ure from Belgi um .

162 . Having regard to the foregoing , the Cour t considers that the situation experienced by the applica nts calls for the same conclusion as in the case of M.S.S. v. Belgium and Greece. In the Court ’ s opinion, the Belgian authorities did not duly take account of the vuln e rabilit y of the applic ants as asylum-seeker s or of that of their children . Notwithstanding the fact that the reception crisis was an exceptional situation, the Cour t finds that the Belgian authorities should be considered to have failed to satisfy thei r obligation not to exp ose the applic ants to conditions of extreme poverty for four weeks – barring two nights – having left them out on the streets with no resources, no access to sanitary facilities , and no means of providing for their essential need s. The Cour t considers that the applican ts were thus victim s of treatment which failed to respect their dignit y and that this situation undoubtedly aroused in them feelings of fear, anguish or inferiority capable of inducing desperation . It finds that such living conditions, combined with the lack of any prospects of their situation improving, attained the level of severity required to fall within the scope of Article 3 of the Convention and amounted to degrading treatment .

163 . I t follows that the applican ts found themselve s, through the fault of the authorities, in a situation incompatible with Article 3 of the Convention . Accordingly , there has been a violation of that provis ion.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION ( DEATH OF THE APPLICANTS ’ DAUGHTER )

164 . The applic ants complained that the reception conditions in Belgi um had resulted in their eldest daughter ’ s death . They relied on A rticle 2 of the Convention, which provides :

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

...

165 . The Court finds that this part of the application is not manifestly ill ‑ founded within the meaning of A rticle 35 § 3 ( a) of the Convention . No other ground for declaring it inadmissible has been established. The Cour t therefore declares it admissibl e.

166 . The applic ants submitted that their eldest daughter would not have died of a lung infection less than one month after they had returned to Serbi a if the Belgian authorities had not expos ed them to conditions of extreme material poverty in Belgi um and had not thus “forced” them to return to Serbi a wher e the living conditions of the Roma population that they had fled, particularly on account of their daughter ’ s poor health , awaited them .

167 . The Govern ment submitted that the applica nts had not shown beyond all reasonable doubt that their eldest daughter ’ s death , in hospital in Serbi a , had been caus ed by the conditions of their stay in Belgium . Failing such evidence and in the absence of reliable and objectively verifiable inf ormation regarding the grounds for admitting her to hospital and the exact causes of the death , it had to be concluded that the re was no causal link between the conditions allegedly experienced in Belgi um and the circumstances of the death i n Serbi a .

168 . The Cour t reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. Article 2 of the Convention may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself. However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind in particular the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources . Accordingly, not every claimed risk to life can entail for the authorities a requirement to take operational measures to prevent that risk from materialising . For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk ( see , among other authoritie s, Keenan v. the United Kingdom , no. 27229/95, §§ 89-90, ECHR 2001 ‑ III ; De Donder and De Clippel v. Belgium , no. 8595/06 , §§ 68-69, 6 December 2011 ; and Nencheva and Others v. Bulgaria , no. 48609/06, §§ 105 and 108, 18 June 2013 ).

169 . In the light of the foregoing , the Court must examine whether the Belgian authorities knew or ought to have known that there was a real and immediate ris k that the applicants ’ eldest daughter ’ s health would deteriorate following their e viction from the accommodation centre to a point that could result in her death .

170 . A number of factor s must be taken into account in that connectio n. The Cour t note s , first ly, that whil st the Belgian authoritie s could not have been unaware that the applicants would be destitute following their e viction from the centre or that the eldest daughter suffered from a number of disorder s, the medical certificat e issued in support of the request for leave to remai n on medical grounds ( see paragraphs 33-34 above ) made no mention of the degree of seriousness of those disorders . Secondly, and above all , the chronology of events shows that a number of factors could have contribu t e d to the applicants ’ daughter ’ s death and in particular the fact that the applicants spent several weeks living in insalubrious conditions following their return to Serbi a .

171 . In those circumstance s , the Cour t considers that the applicants have not shown, beyond all reasonable doubt, that their eldest daughter ’ s death was caused by the conditions of their stay in Belgi um and that the Belgian aut h orit ies failed to satisfy any positive obligation in that respect .

172 . Accordingly , there has not been a violation of Article 2 .

III. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE CONVENTION (ASYLUM AND R E GULARISATION PROCE DURES)

173 . The applicants alleged that their – direct or indirect – removal to Serbi a and the refusal to grant them leave to remain had endangered their eldest daughter ’ s life and exposed them to a risk of inhuman and degrading treatment in breach of A rticles 2 and 3 of the Convention cited above .

174 . They also complained that they had not had an effective remedy in respect of those complaint s. They alleged a violation of A rticle 13 of the Convention , which reads as follows :

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Classification of the complaint s

175 . The Cour t observes that the applicants ’ complaints against Belgi um , as set out in the application form and expanded in the written observations, mainly concern ed i) their fears of being expos ed , in the event of their return to Serbi a , to ris ks for their daughter ’ s life and their physical int egrity in breach of A rticles 2 and 3, which was why they had applied for asylum and leave to remain on medical grounds in Bel gi um , and ii) the lack of an effective remedy before the national authorities in respect of those fears , in breach of A rticle 13.

176 . It notes that the Belgian authorities did not examin e the merits of their above-mentioned fear s either regarding asylum or leave to remain . I t is not for the Cour t to rule in that connection . It is rather for the relevant national aut h orit ie s to examine the applicants ’ fears and the documents produced by them and to assess the ris k s incurred by them , under Articles 2 and 3 , in the event of a return to their country of ori gin or to a n intermediary country . This is in accordance with the principle of subsidiarit y, which underpins the Convention system , a nd with the fact that neither the Convention nor any of its Protocol s guarantees a right to political asylum ( see M.S.S. v. Belgium and Greece , cited above , § 299; Singh and Others v. Belgium , no. 33210/11 , § 55, 2 October 2012 ; A.C. and Others v. Spain , no. 6528/11 , § 93, 22 April 2014; and Sharifi and Others v. Italy and Greece , no. 16643/09 , § 138, 21 October 2014 ).

177 . However , the fact that the applicants ’ fears were not the subject of a domestic de cision does not dispense the Cour t from examin ing whether the applic ants had arguable claims that they risked being subjected to treatment contrary to A rticles 2 and 3 and , if so , had effective g uarantees , for the purposes of A rticle 13, enabling them to asse r t those claims and protecting them from arbitrary refoulement to the country they had fled ( see Nuri Kurt v. Turkey , no. 37038/97, § 116, 29 November 2005; M.S.S. v. Belgium and Greece , cited above , §§ 294-320; Singh and Others , cited above, § 55; and Sharifi and Others , cited above , § 139 ).

178 . As the Court observ ed in the case of Sharifi and Other s , cited above (§ 139), the fact that the applicants ’ fears about (direct or indirect) refoulement to Serbia were lodged directly with the Cour t , under A rticles 2 and 3 of the Convention, could admittedly be deemed contrary to the rule of exhaustion of domestic remedies laid down by A rticle 35 § 1 of the Convention. H owever , the alleged lack of effective access to the asylum procedure could have deprived the applic ants, in practice , of any protection a t the national level against arbitrary refoulement , in breach of A rticle 13.

179 . These two aspects of the princip l e of subsidiarit y , which are expressed in A rticles 13 and 35 § 1 of the Convention, have equal weight as factors to be taken into consideration .

180 . Accordingly , the complaints relating to the applicants ’ removal to Serbi a and the lack of acces s to an effecti ve remedy in practice fall to be e xamin ed under A rticle 13, taken in conjunction with Ar ticles 2 and 3 of the Convention, and not under A rticles 2 and 3 taken alone .

B. V iolation of A rticle 13 taken in conjunction with A rticles 2 and 3 of the Convention

1. Admissibility

a) Objections raised by the Govern ment

181 . In so far as it concern ed the proceedings regarding de termination of the State responsible under the Dublin Regulation for examining the asylum application, the Govern ment argued that this part of the application was not admissible for two reasons . Firstly, the applicants had ultimately not been removed by the Belgian authorities either directly to France or indirect ly to Serbia . On the contrary , they had returned to Serbi a of their own accord . Secondly , the applic ants had not proved the existence of a risk that they would suffer treatment contrary to A rticle 3 of the Convention i n France.

182 . With regard to the appeals against the decision r efus ing the applicants leave to remain on medical grounds, the Govern ment raised an objection on grounds of inadmissibility for failure to exhaust domestic remedies because the applicants had not lodged an appeal against the Aliens Office ’ s de cision declaring inadmissible their application based on section 9 ter of the Aliens Act .

b) The C our t ’ s assessment

183 . The Cour t reiterates that it has given a legal classification to the facts underlying the complaints about the applicants ’ removal and the refusal to grant them leave to remain and decided to exa mine these complaint s under only A rticle 13 taken together with A rticles 2 and 3 of the Convention and thus not under A rticles 2 and 3 taken alone ( see paragraphs 178- 83 above ). In other words, the Cour t will examine the applicants ’ complaints with regard to the respondent State ’ s obligation to p rovide the applicants with an “ effective remedy ” by which a national authority could examine their complaints based on A rticles 2 and 3, without the Court itself ruling on the merits of those complaint s.

184 . I t follows that the objections raised by the Govern ment, given that they concern the admissibility of the complaints based on a risk of a violation of Ar ticles 2 and 3, are devoid of purpose and must accordingly be rejected .

185 . With regard to the Government ’ s a rgument that the applicants had voluntarily left Belgium for Serbia , the Cour t is at pains to point out that it considers that the applicants ’ “voluntary” departure confirms the extr e me poverty in which the family found itself , to the point of having no other solution than to return to Serbi a . The applic ants never waived their rights ; it would appear, on the contrary, that they did everything in their power to remain i n Belgi um and defend them . The Cour t refers in this connection to its examination of the situation and its co nclusion under A rticle 3 of the Convention ( see paragrap hs 139- 63 above ) .

186 . The Cour t also observes that the part of the application relating to Ar ticle 13 is not manifest ly ill-founded under Article 35 § 3 a) of the Convention and is not inadmissible on any other grounds . It must therefore be de clare d admissibl e.

2. Merits

a) Existence of arguable complaints

187 . In accordance with its established case-law , the Cour t must determine whether the applicants ’ complaints based on A rticles 2 and 3 of the Convention regarding their direct o r indirect return to Serbi a were “arguable” complaints that they should have been able to submit for examination on the merits by a n ational authority in proceedings meeting the requirements of A rticle 13 of the Convention.

188 . The Cour t reiterates that a complaint may be regarded as arguabl e where it is not prima facie unfounded and warrants an examination on the merits by the appropriate national authorities ( see Çelik and Ä°mret v. Turkey , no. 44093/98, § 57, 26 October 2004; Nuri Kurt , cited above , § 117; Singh and Others , cited above , § 84; and Sharifi and Others , cited above, §§ 173 ‑ 74).

189 . As the national authoriti es are better equipped than the Cour t to establish the facts necessary for an assessment of the alleged fear s, a de cision on their part makes the Court ’ s task easier and allows it to confine itself to its subsidiary rol e post factum ( see D.P. and J.C. v. the United Kingdom , no. 38719/97, § 136, 10 October 2002 ). That being said , as the Court has already pointed out ( see paragraph 177 above and the r e f e rences cited therein), the absence of such a decision does not dispens e it from the duty to examine itself whether the applicants had arguable complaints to submit before the Belgian authoritie s. In view of the potentially serious and irreparable nature of the alleged suffering risked ( see Soering v. the United Kingdom , 7 July 1989, § 90, Series A no. 161 ), the lack of an examination at domestic level means that the Cour t should not adopt a prima facie restrictive interpretation of the arguability of the complaints in issue .

190 . With regard to the applicants ’ fear of an indirect return to Serbi a via France in the context of the Dublin procedure , the Cour t note s that the asylum application lodged by the applicants i n France had been rejected almost a year earlier by the authorities of that country when the Aliens Office asked F rance to take the applicants back under the Dublin II Regulation ( see paragraphs 14-15 above ). The applica nts accordingly had no guarantee that the French authorities would not return them to Serbi a .

191 . Regarding the situation in Serbia , a country which the applicants had fled , the Cour t is in possession of a number of reports indicating that Serb s of Roma origin were the victims of discrimination i n Serbi a , lived in appalling conditions, and had no access to health care , housing or e ducation ( see paragraphs 110- 12 above ). In the Court ’ s opinion , regard should be had to this information combined with the alle gations of discrimination and ill ‑ treatment suffered in Serbi a which the applicants raised before the Belgian asylum authorities ( see paragraphs 12 and 22) and to the specific vuln erability of the applicants on account of the pre sence of a severely disabled young girl and of young children , including a baby . Those factors taken together are sufficient for the Cour t to c onsid er that the complaints of risks in the event of a return to Serbi a were arguable .

192 . The Cour t therefore rejects the Government ’ s submission that the applicants did not have arguable claims to submit before the Belgian authorities when they applied for asylum on 1 Apri l 2011 and pursued the procedure before the Aliens Appeals Board .

193 . Furthermore , and contrary to the Government ’ s submission , the fact that the applic ants did ultimately leave does not affect the arguability of their complaints . The Cour t reiterates that , in determining whether complaints are arguable , it must make its decision in the light of the situation existing at the time of the national authoriti es ’ examination, even if, as in the present case, the risk of treatment contrary to Article 3 has evolved over time ( see Gebremedhin [Gaberamadhien] v. France , no. 25389/05, § 56, ECHR 2007 ‑ II; I.M. v. France , no. 9152/09 , § 100, 2 February 2012; and Singh and Others , cited above , § 80).

194 . I n conclusion, the applicants ’ complaints under A rticles 2 and 3 can be deemed to have warranted an examination on the merits before a national authority in proceedings satisfying the requirements of effectiveness laid down by A rticle 13. Accordingly, that provision is applicable.

b) Effectiveness of the remedie s

i. The parties ’ submission s

195 . The applic ants submitted that their appeal to the Aliens Appeals Board against the order to leave the country was not an effective remedy satisfying the requirements of A rticle 13 of the Convention taken in conjunction with A rticles 2 and 3 for two reasons: firstly , the appeal did not suspend the ir possib le refoulement to France. As they were a family, they could not be detained; thus they did not have access to the procedure for requesting a stay of execution of the removal measure on grounds of extreme urgency. Admittedly, they did request a stay of the measure, but they did so under the “ordinary” proce dure that did not have the effect of suspending the order to leave the country . In accordance with Fedasil ’ s policy , in such a case material assistance was not maint ained pending a de cision of the Aliens Appeals Board . As they had had no practical possibility of waiting for the outcome of the Dublin procedure , the applicants had been compelled to leave Belgi um, which had rendered their appeal devoid of any purpose . The applicants also complained about the limit s of the review of lawfulness on an application to have a decision set aside , since the Aliens Appeals Board confined itself to examining points of law , and not the facts , on the basis of an assessment at the time the transfer de cision was taken and not at the time of the court ’ s decision , contra ry to the Court ’ s rulings in Salah Sheekh v. the Netherlands (no. 1948/04, § 136, 11 January 2007), M.S.S. v. Belgium and Greece ( cited above , § 389), and Yoh-Ekale Mwanje v. Belgium (no. 10486/10 , § 106, 20 December 2011). Lastly , the applic ants submitted that they had also been deprived of an effective remedy against the de cision refus ing them leave to remain on medical grounds since they had not learnt of the decision until the proceedings before the Cour t .

196 . The Govern ment submitted that the present case had to be distinguished from the cases cited by the applicant s. Firstly , the applicants had never been removed since they had themselves decided to return to Serbi a . Secondly , the de cision taken by the authorities following their asylum application , even if it only concerned the de termination of the responsible State and accordingly ruled out any examination of the application on the merits , aimed to ensure their transfer to France, a country in which they had not presented an arguabl e claim that they would be victim s of treatment contrary to Article 3 and not be provided wi t h the conditions necessary to have their fear s examined . Where foreign nationals did not show that their return would have potentially irreversible consequences, it was not imperative, in order for a remedy to be effective, that it should h ave automatic suspensive effect but only that they should have an effective possibility of challenging the expulsion order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality ( see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012 ), which was not disputed by the applicants in the present cas e.

ii. The Cour t ’ s assessment

α) A rticle 13 taken in conjunction with A rticle 3 of the Convention

– General p rincip l es

197 . The Cour t reiterates its well-established case-law regarding the application of A rticle 13 , taken in conjunction with A rticle 3 of the Convention, to the expulsion of aliens, and particularly potential or unsuccessful asylum-seeker s ( see , among other authoriti es, M.S.S. v. Belgium and Greece , cited above, §§ 286- 93, and Hirsi Jamaa and Others , cited above , §§ 197-200) .

198 . In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the available remedies mus t provide guarantees of a ccessibilit y , qualit y, speed and suspensive effect .

199 . As the Convention is designed to guarantee not rights that are theoretical or illusory but rights that are practical and effective to everyone within the jurisdiction of the States P arties, effectiveness requires that remedies be available and accessible in law and in practice . A ccessibilit y in practice of a remedy is particularly important in order to assess the effectiveness of remedies available to asylum-seeker s . It requires, among other thing s , that the exercise of a remedy not be unjustifiably hindered by act s o r omissions of the authoritie s ( see also M.S.S. v. Belgium and Greece , cited above , § § 318- 19 and 392). The Cour t has particular regard to linguistic obstacles, the possibilit y of access to the necessary information and to appropriate advice , the material condition s with which the applicant may be faced and any other concre te aspect of the cas e ( see I.M. v. France , no. 9152/09 , § 150, 2 February 2012; A.C. and Others v. Spain , cited above , §§ 85-86; and Sharifi and Others , cited above, §§ 167- 69).

200 . Effectiveness also pre suppose s a remedy of a certain qualit y . A rticle 13 requires close scrutiny , and independent and rigorous examination of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 ( see M.S.S. v. Belgium and Greece , cited above , §§ 293 and 387). A rticle 13 also imposes a duty on the relevant authority to carry out a n in-depth examination of arguable complaints based on A rticle 3 . Procedural rules cannot preclude an ex nunc examination of such claim s ( see Yoh-Ekale Mwanje, cited above , § 106 , and Singh and Others , cited above , § 91). The national authority must be able to examine the substance of the complaint and afford proper reparation ( see M.S.S. v. Belgium and Greece , cited above , § 387). Whilst the effectiveness of a remedy does not depend on the certainty of a favourable outcome, the lack of any prospect of obtaining adequate redress raises an issue under Article 13 ( see M.S.S. v. Belgium and Greece , cited above , § 394).

201 . Furthermore , A rticle 13 requires that the national authorities show special diligence ( see A.C. and Others v. Spain , cited above , §§ 88 ‑ 103). That being said, speed must not be given priority at the expense of the effectiveness of procedural guarantees designed to protect the persons concerned from arbitrary refoulement ( see I.M. v. France , cited above , § 147, and A.C. and Others v. Spain , cited above , § 100). While being aware of the need for States to have the means necessary to deal with the flow of applications resulting from the substantial influx of asylum-seeker s , the Cour t consid ers that, like A rticle 6 of the Convention, A rticle 13 requires States to organise the national authorities in such a way as to satisfy all the requirements of effectiveness ( see A.C. and Others v. Spain , cited above , § 104).

202 . Lastly , the effectiveness of a remedy for the purposes of Arti cle 13 taken in conjunction with A rticle 3 pre suppose s a remedy capable of preventing the damage from materialising . Accordingly, the domestic remedy must automatically suspend enforcement of the removal measure ( see ÄŒonka v. Belgium , no. 51564/99, §§ 81-83, ECHR 2002 ‑ I; Gebremedhin [Gaberamadhien] , cited above , § 66; R.U. v. Greece , no. 2237/08 , § 77, 7 June 2011 , Singh and Others , cited above , § 92; and Hirsi Jamaa and Others , cited above , §§ 205-207 ).

– Application of the princip l es i n the present cas e

203 . The Court observes, in the light of the applicable statutory provisions and the relevant case-law (see paragraphs 55-56 above), that under Belgian law an order to leave the country is a binding administrative decision which the administrative authorities are authorised to enforce . In the present case execution of the order to leave the country issued to the applicants on 26 May 2011 was extended until 25 September 2011 and could then be enforced at any time from 26 September 2011 onwards . On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board to set the order to leave the country aside and for a stay of execution under the ordinary proced ure .

204 . As they were not detained with a view to their repatriation , the applicants could not obtain a stay of execution of their expulsion under the extreme ly urgen t procedure pending an examination on the merits by the Aliens Appeals Board of their application to have the order set aside . They therefore lodged , at the same time as the application to set asid e , a request for a stay of execution under the ordinary procedure . They complained that as the enforcement of the order to leave the country was not suspended as a result of that request , from 26 September 2011 onwards Fedasil had stopped providing the material assistance they had been receiving until then , which had forced them to leave Belgi um for the country they had fled without having the merits of their fears in that country examined by the authorities from whom they had sought protection.

205 . The Government concentrated their arguments on the situation i n France, the intermediary country under the Dublin procedure , and concluded from the applicants ’ inability to conv ince the Aliens Appeals Board that they risked being subjected to treatment contrary to Article 3 that the applican ts had failed to substantiate a right to benefit from an automatically suspensive remedy .

206 . The Cour t cannot uphold the Government ’ s submission . The fears expressed by the applicants both before the domestic authorities and before this Court concern the risks of treatment contrary to A rticle 3 of the Convention to which they claimed that they would be subjected in the event of a direct or indirect return to Serbi a . In the Court ’ s view, those claims were arguable ( see paragraphs 187-94 above ).

207 . I t follows that in order to defend those claims before the Belgian courts the applicants should have had a remedy offering the guarantees of effectiv eness required in the event of expulsion of a foreign national under A rticles 13 and 3 taken together as summarised above ( see paragraph s 197 ‑ 202).

208 . The Cour t notes that under Belgian law an application to the Aliens Appeals Board to have an order to leave the country set aside does not suspen d enforcement of the removal order . The Aliens Act provides for specific proce dures , however, for requesting a stay of execution , either under the extremely urgent procedure or under the “ordinary” procedure ( see paragraph s 60-63 above ).

209 . A request for a stay of execution under the extremely urgent procedure automatically suspends enforcement of the removal measure . Under Belgian law as applicable at the material time, prior to the entry into force of the Law of 10 Ap ril 2014 ( ibid. ), the Aliens Appeals Board could, on the basis in particular of an examination of the serious nature of the arguments alleging a violation of the Convention, order, within seventy-two hours, a stay of execution of the impugned decision, thereby ensuring that the persons concerned were not removed from the country before their arguments had been examined in detail in the context of the application to set aside the decision .

210 . An automatic stay of execution could also be obtained by means of a different combination of remedies : this involved first an application to set aside and a request for a stay of execution under the ordinary procedure to be lodged within thirty days of notification of the impugned decision, followed by a request for interim measures under the extreme ly urgen t procedure once the alien concerned was made the subject of a coercive measure . The Aliens Appeals Board then had a statutory duty to examine simultaneously, within seventy ‑ two hours, the request for extremely urgent interim measures and the ordinary request for a stay of execution that had already been lodged. The request for extremely urgent interim measures, once lodged, automatically suspended enforcement of the removal order .

211 . However, according to the interpretation of the concept of extreme urgency by the Aliens Appeals Board, both the request for a stay of execution under the extremely urgent procedure and the request for interim measures under the extreme ly urgen t procedure required the existence of a coercive measure – in principle deten tion of the persons concerned – in order to be declared admissible and well - founded ( see paragraphs 62-63 above ).

212 . The Cour t observe s that this syst e m, as described above (paragraph 210), obliged the foreign national concerned, who was the subject of an expulsion measure and maintained that a stay of execution of that measure was an urgent matter, to lodge a precautionary application, in this instance a request for a stay of execution under the ordinary procedure. That application, which did not have suspensive effect, had to be lodged for the sole purpose of retaining the right to take action when the matter attained real urgency as defined by the case-law of the Aliens Appeals Board, that is, when a coercive measure was applied against the foreign national in question .

213 . The Cour t considers that this syst em can be criticis ed on a number of counts .

214 . Firstly , the risk cannot be ruled out that in a system where a stay of execution must be applied for and is examined on a case-by-case basis it may be refused wrongly, in particular were it subsequently to transpire that the court ruling on the merits does nonetheless have to quash an expulsio n order for failure to comply with the Convention, for instance if it consider s after a more thorough examination that the applicant would actually risk being subjected to ill-treatment in the receiving country. In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13 ( see Čonka , cited above , § 82, and A.C. and Others v. Spain , cited above , § 94).

215 . It should be noted that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. That is one of the consequences of the rule of law, which is one of the fundamental principles of a democratic society inherent in all the Articles of the Convention ( see Čonka , cited above , § 83; Gebremedhin [Gaberamadhien], cited above , § 66; R.U. v. Greece , cited above , § 77; and A.C. and Others v. Spain , cited above , § 95).

216 . Secondly , i n the Court ’ s view the arrangement under Belgian law , while it may be effective in theory, is in practice difficult to implement and very complex . In the present case, the fact that an application for a stay of execution under the ordinary procedure is not of suspensive effect and results in material assistance being withheld “forced” the applicants to return to the country they had fled without the merits of their fears being examined either by Belgi um , whose responsibility had been declined by the Aliens Office ( see paragraph 18 above ), or by France , whose responsi bilit y was disputed by them whereas a few months later their submissions were upheld by the Aliens Appeals Board ( see paragraph 30 above ). The Cour t finds that in the particular circumstances of the instant case the Belgian system did not offer the guarantees required by A rticle 13 taken in conjunction with A rticle 3 of availability and accessibilit y of remedies in law and in practic e ( see paragraph s 197-202 above ).

217 . Thirdly , the Cour t observe s that this system forces the persons concerned, who are already in a vulnerable position, to take further action in extremis at the time of enforcement of the measure . This situation is of particular concern in the case of families accompanied by minor children, bearing in mind that execution of the measure in the form of placement in detention, if it is unavoidable, must be kept to a strict minimum, in accordance in particular with the Court ’ s case-law ( see Muskhadzhiyeva and Other s ; Kanagaratnam ; and Popov , cited above ).

218 . Fourthly , the Cour t cannot overlook the delay s in the procedure in question . The application to have the order to leave the country set aside was lodged on 16 June 2011 and oral submissions made on 26 August 2011. Yet the Aliens Appeals Board did not deliver its judgment until 29 November 2011 , after the applicants had left for the country they had fled and without the merits of their fears, as formulated before the Belgian asylum authorities, being examined by those authorities or by the French authoritie s. That situation deprived them, in practice , of the possibilit y of pursuing the procedure in Belgi um and in France. Having regard to the nature of the grounds relied on before the Aliens Appeals Board and the serious co ns e quences for the applicants ’ legal and material situation of the de cision complained of before it , the Cour t considers that the application to have the order set aside was also inade quat e on account of the time taken to deal with it .

219 . The Cour t notes, lastly , that the applicant s sought a remedy via another avenue against their removal . They lodged an application for leave to remain on medical grounds based on section 9 ter of the Aliens Act ( see paragraph 33 above ). However , the applic ants did not learn of the existence of that de cision until later, during the proceedings before the Cour t ( see paragraph s 35-36 above ). I t follows that they did not have an effective remedy by which to challenge that de cision either .

220 . In view of the analysis of the Belgian system as in force at the material time , the Court concludes that the applicants did not have an effective remedy in the sense of one producing automatic suspensive effect and by which they could obtain an effective review of their arguments alleging a violation of Article 3 of the Convention . There has therefore been a violation of Article 13 taken in conjunction with Article 3 of the Convention .

β) A rticle 13 taken in conjunction with A rticle 2 of the Convention

221 . Having regard to the above conclusion and the circumstances of the cas e, the Cour t considers it unnecessary to examine the applicants ’ complaints under A rticle 13 taken in conjunction with A rticle 2 of the Convention ( see M.S.S. v. Belgium and Greece , cited above , §§ 322 and 397).

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

222 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

223 . The applic ants claimed 64 , 750 euros (EUR) in respect of the non ‑ pecuniary damage they had suffered , a sum which they broke down as follows : EUR 3 ,250 for each of the seven applic ants who had lodged the application , correspond ing to EUR 125 per applica nt p e r day spent on the streets ( twenty- six day s), and 7, 000 euros for each of the s ix current applic ants following the death of the eldest daughter .

224 . The Govern ment left the matter to the Cour t ’ s discretion .

225 . The Cour t notes that it has found no violation of A rticle 2 of the Convention ( see paragraph 1 72 above ). It therefore makes no award in respect of the non-pecuniary damage suffered on account of the applicants ’ eldest daughter ’ s death .

226 . However, having found a violation of A rticle 3 and being satisfied that the applicants clearly suffered non-pecuniary damage on account of their living c onditions in Belgi u m after their e viction from the accommodation centre, the Cour t , making an assessment on an equitable basis, as required by Article 41 of the Convention, awards the parent applicants , for themselves and as representatives of the children and heirs of their deceased child , the sum claimed in full , namely, EUR 22, 750.

B. Costs and expenses

227 . The applic ants also claimed EUR 8, 120 for the costs and expenses incurred before the Cour t . Their repr e senta tive produced a bill of costs and expenses in support of the claim and indi cated that the amount claimed cor respond ed to eighty-nine hours ’ work at a n hourly rate of ninety euros. The remainder concerne d photocopying and communication expenses .

228 . The Govern ment left the matter to the Court ’ s discretion .

229 . According to the Court ’ s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum . In the present case, on the basis of the information in its possession and the particular complexity of the case , the Court considers the sum claimed to be reasonable and decides to award it in full to the applicant parents, for themselves and as representatives of the children and heirs of their deceased child .

C. Default interest

230 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1 . Joins to the merits , by a majority, the Government ’ s preliminary objection on grounds of non-exhaustion of domestic remedie s regarding the reception conditions and dismisses it;

2 . Rejects , by a majority , the other preliminary objections ;

3 . Declares , by a majority , the applic ation admissible ;

4 . Holds , by five votes to two , that there has been a violation of Article 3 of the Convention o wing to the applicants ’ reception conditions in Belgium ;

5. Holds , unanimously, that there has been no violation of Article 2 of the Convention;

6. Holds , by four votes to three, that there has been a violation of Article 13 taken in conjunction with Article 3 of the Convention;

7. Holds , by six votes to one, that it is not necessary to examine the complaints under Article 13 taken in conjunction with Article 2 of the Convention;

8 . Holds , by five votes to two,

(a) that the respondent State is to pay the applicants , V.M. and G.S.M., for themselves and as representatives of the children and heirs of their deceased child , within three months of the judgment becoming final in accordance with Article 44 § 2 of the Convention , the following sums :

(i) EUR 22,750 ( twenty-two thousand seven hundred and fifty euros) , plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii) EUR 8,120 ( eight thousand one hundred and twenty euros), plus any tax that may be chargeable to the first applicant , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9 . Dismisses , unanimously, the remainder of the applicants ’ claim for just satisfaction.

Done in French , and notified in writing on 7 July 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Işıl Karakaş Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judge s Sajó, Keller and Kjølbro are annexed to this judgment.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) dissenting opinion of Judge Sajó;

(b) dissenting opinion of Judge Keller

(c) dissenting opinion of Judge Kjølbro.

A.I.K . A.C.

DISSENTING OPINION OF JUDGE SAJÓ

(Translation)

Unfortunately, I cannot subscribe to the majority ’ s finding that there has been a violation of Article 3 of the Convention (reception conditions) and of Article 13 taken in conjunction with Articles 2 and 3 of the Convention in the present case.

I have had the privilege of reading the dissenting opinions of my colleagues Judges Keller and Kjølbro and I find their points of view very pertinent and convincing.

I would merely like to add the following remark: regarding the alleged violation of Article 3 of the Convention (reception conditions), even acknowledging that there was a legal basis for an obligation to provide urgent accommodation, a place had been assigned to the applicants. The explanations provided by the latter do not alter the fact that they were offered accommodation.

The situation of persons seeking reception facilities in Belgium is different from that observed in Greece in the case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011 ). In Greece the precarious situation was the result of illegal failure to take action on the part of the authorities . That is not the case here. Furthermore, the Belgian authorities provided very generous support to the applicants over a long period.

With regard to Article 13 taken in conjunction with Articles 2 and 3 of the Convention, in respect of an overall assessment of a real risk of being subjected to treatment contrary to those two provisions, I would like to point out that Serbia is a member State of the Council of Europe. Moreover, no judgment of the Court has found that such a situation existed regarding Articles 2 and 3 of the Convention. That does not mean, however, that the situation of Rom a , as described in the documents taken into consideration by the majority, is not alarming from a humanitarian point of view.

DISSENTING OPINION OF JUDGE KELLER

(Translation)

I. Introduction

1. I fully share the majority ’ s view that there has been a violation of Article 3 of the Convention in the present case (see point 4 of the operative provisions). However, I cannot subscribe to the ir finding that there has been a violation of Article 13 taken in conjunction with Article 3 of the Convention in the present case.

2. I will start by outlining the facts and explaining the importance of the present case for the “Dublin” system (II), before setting out the relevant EU law and case-law (III). I will then discuss the principles of our own case-law (IV) and, lastly, their application to the instant case from the point of view of “arguability” of the applicants ’ complaints (V).

II. Scope of the present case

3. This is a Dublin case concerning a Roma family of Serbian origin who were “forced” to return to Serbia. The applicants alleged, among other things , that their direct removal – or indirect removal by France – to Serbia and the refusal to grant them leave to remain had endangered their eldest daughter ’ s life and exposed them to the risk of inhuman and degrading treatment in violation of Articles 2 and 3 of the Convention cited above . They also complained , under Article 13 of the Convention, that they had not ha d an effective remedy in respect of those complaints (see paragraphs 174 and 175 of the judgment). As this was a “Dublin” transfer and given that France had agreed to take the applicants bac k in accordance with Article 16( 1 ) of the “Dublin II Regulation” [ Council Regulation EC No 343/2003 of 18 February 2003], the Belgian national authoriti es did not examin e the merits of the applicants ’ fears either regarding the right of asylum or leave to remain ( see paragraph 176 of the judgmen t). From the point of view of the Convention, the important question here is whether the applicants ’ complaints under A rticles 2 and 3 of the Convention were “arguable complaints ” which they should have been able to submit for examination on the merits by a national authority in proceedings meeting the requirements of Article 13 of the Convention ” ( see paragraph 187 of the judgmen t).

4. The present application is one of a series of cases concerning the effects of a “Dublin” transfer with regard to the Convention ( see T.I. v. the United Kingdom (de c.), n o. 43844/98, ECHR 2000-III; K.R.S. v. the United Kingdom (de c.), n o. 32733/08, 2 December 2008; M.S.S. v. Belgium and Greece [GC], no . 30696/09, ECHR 2011; and Tarakhel v. Switzerland [GC] (no. 29217/12 , ECHR 2014 (extracts) ). The manner in which the Cour t examine s the requirement of “arguable complaints” in the present case will thus be of general im portance for the entire European legal system .

III. Relevant EU law

5. There is a presumption in the EU that every Member State observes the fundamental rights of the Union. According to the CJEU , “the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System” is based “on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights” ( J udgment of the CJ E U of 21.12.2011 – N.S. v Secretary of State for the Home Department and M. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (C-411/10 and (C-493/10) , § 83). According to the CJ E U , it follows that the Member States of the Union are entitled to have confidence in that pr e s u mption in the event of a de cision ordering a return to another Member State of the Dublin Regulation (ibid . , § 79).

6 . However , the CJ E U has also specified that this presu mption is not irrebuttable: “European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union” ( ibid . , § 105). Consequently, “Article 4 of the Charter [of Fundamental Rights of the European Union] must be interpreted as meaning that the Member States ... may not transfer an asylum-seeker to the Member State responsible ... where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum-seeker s in that Member State amount to substantial grounds for believing that the asylum-seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision” . The CJEU has reaffirmed that principle ( Judgment of the CJEU of 12 December 2013, C ‑ 394/12, Shamso Abdullahi v Bundesasylamt , § 60 , and Judgment of the CJEU of 14 November 2013, C-4/11 Kaveh Puid v Bundesrepublik Deutschland , § 30), which is now codifi ed in the new “ Dublin III Regulation” (No 604/2013, A rticle 3 (2)).

IV. The princip l es arising from our case-law

a. The relationship between EU law and the Convention

7. In the deci sion T.I. v. the United Kingdom ( cited above ), the Cour t found that th e “Dublin” system did not absolve the States Parties of thei r respons ibility under the Convention and that, accordingly , it had a duty – also in the context of “Dublin” returns – to ensure that the obligation s to protect an applic ant from the risk of being subjected to torture o r ill ‑ treatment contrary to A rticle 3 of the Convention had been fulfilled .

“The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution (see e.g. Waite and Kennedy v. Germany judgment of 18 February 1999, Reports 1999, § 67).”

8. Moreover , in the case of M.S.S. v. Belgium and Greece ( cited above, § 339), and then in the case of Tarakhel ( cited above , §§ 88 et s eq . ), the Grand Chamb er of the Cour t observed that the p r e s umption of e quivalen t protection did not apply in the context of a “ Dublin ” transfer :

“The Court notes that Article 3 § 2 of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3 § 1, each member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called “sovereignty” clause. In such a case, the State concerned becomes the member State responsible for the purposes of the Regulation and takes on the obligations associated with that responsibility.”

b. The criterion applicable to refoulement

9. There is an o bligation on States P arties under the Convention not to expel a person where there are substantial grounds for believing that he or she faces a real risk of being subjected to treatment contra ry to Ar ticles 2 and 3 of the Convention ( see, for example, Saadi v. Italy [GC], no. 37201/06 , § 152, ECHR 20 08, and Soering v. the United Kingdom , 7 July 1989, § § 90-91 , Series A no. 161 ).

10. Unlike the provisions under EU law applicable to “ Dublin ” transfers , the relevant criterion with regard to A rticles 2 and 3 of the Convention is not therefore the existence of systemic deficiencies in the receiving country , but the existence of a real risk of being subjected to treatment contrary to the Convention. As the Supreme Cour t of the United Kingdom rightly observed in a judgment of 19 February 2014 ([2014] UKSC 12]) cited by the Grand Chamb er in the case of Tarakhel ( cited above , §§ 52 et s eq.), “ violations of Article 3 rights can occur without there being any systemic failure whatsoever” .

11. That being said , there is also a presumption within the Council of Europe that each State Party abides by its commitments under the Convention. In the decision in T.I. v. the United Kingdom ( cited above ), the Cour t stated that there was no basis on which it could assume “in this case that Germany would fail to fulfil its obligations under Article 3 of the Convention to provide the applicant with protection against removal to Sri Lanka” . Still more explic i tly , in the decision given in the case of K.R.S. v. the United Kingdom ( cited above ), which concern ed a “ Dublin ” transfer to Greec e, the Cour t , after pointing out that Greece, as a Contracting State, had undertaken to abide by its Convention obligations and to secure to everyone within its jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3 , observed that , in the absence of any proof to the contrary, “it must be presumed that Greece [would] comply with that obligation in respect of returnees including the applicant” . Furthermore , the Cour t considered that the presu mption also applied with regard to compliance with EU law : “[t] he presumption must be that Greece will abide by its obligations under those Directives ” .

12. Admittedly , in the case of M.S.S . v. Belgium and Greece (cited above ) the Grand Chamb er has in the meantime analysed the situation differently regarding Greece and , in Tarakhel ( cited above ), gone on to consider that there were also deficiencies in the reception facilities for asylum-seeker s in Italy from the point of view of the Convention. However , in those two cases the Cour t reconfirm ed its earlier case-law and maint ained the princip l e d eveloped in the de cisions T.I. v. the United Kingdom and K.R.S. v. the United Kingdom ( cited above ) according to which there is in principle a presumption that each State Party observes its Convention commitments .

V. The existence of “arguable complaints” in the present cas e

13. The majorit y have a rrive d at the conclusion that the applicants ’ complaints “would have warranted an examination on the merits before a national authority in proceedings satisfying the requirements of effectiveness laid down by A rticle 13 ” ( see paragraph 194 of the judgment ), given that “ the asylum application lodged by the applicants in France had been rejected almost a year earlier ” ( see paragraph 190 of the judgment ), and that, consequently , the applic ants had no guarantee that they would not be returned to Serbi a , where appalling conditions an d no access to health care, housing or education awaited them ( see paragraphs 113- 15, 193 and 194 of the judgment ).

14. Accordingly , the majorit y consider that there has been a violation of A rticle 13 taken in conjunction with A rticle 3 of the Convention : “ [i] n view of the analysis of the Belgian system as in force at the material time, the Court concludes that the applicants did not have an effective remedy in the sense of one producing automatic suspensive effect and by which they could obtain an effective review of their submissions alleging a violation of Article 3 of the Convention ” ( see paragraph 220 of the judgment ).

15. In my view, the majority have not taken sufficient account of the principles arising from our case-law set out above (IV) and have applied these erroneously to the pres e nt ca se.

16. In order for the guarantees under Article 13 of the Convention to apply in the present case, the complaint s that the applicants ’ return to France would expose them to a real and serious risk of treatment contrary to A rticle 3 of the Convention ( see Soering , cited above , §§ 90-91; see point IV above ) must b e defined as arguable . The Cour t thus has the task of examin ing the requirement of arguable complaints with regard to the situation i n France ( see M.S.S. v. Belgium and Greece (cited above , §§ 341- 43). A complaint may be regarded as arguable where it is not prima facie unfounded and warrants an examination on the merits by the appropriate national authorities ( see paragraph s 187 and 188 of the judgment ).

17. T he majority appear to overlook in their reasoning the fact that France is a State Party to the Convention and that, according to our case-law ( se e point IV above ), Belgi um could, in the absence of any proof to the contrary , pr esume that France complied with its obligations under the Convention and would not expel the applica nts to Serbia if there were a risk that they would be subjected to treatment contrary to A rticles 2 and 3 of the Convention.

18. In the present case I see no evidence that would enable this pre s u mption to be rebutted . As my coll eag ue Judge Kjølbro observes in his dissenting opinion, we do not have any i nformation to suggest that the asylum system i n France fails to conform to the requirements of the Convention. Furthermore , the mere fact that the applicant s had previously been the subject of a de cision of the French authorities rejecting their asylum application is not suffic i e nt either , in my view, to suggest that France would not protect the applicants ’ Convention rights .

VI. Conclusion

19. Having regard to the foregoing , I conclu de that the Belgian authorities could trust France to observe its Convention commitments . Consequently , the applicants ’ complaints that thei r return to France would expose them to a real and serious risk of treatment contrary to A rticle 3 of the Convention do not appear to me to be arguable . In my view , there has not therefore been a violation of A rticle 13 taken in conjunction with A rticle 3 of the Convention.

DISSENTING OPINION OF JUDGE KJØLBRO

1. I respectfully disagree with the majority in their assessment of the applicants ’ complaints about the conditions of reception and also the procedure for asylum and regularisation. In my view, there has been no violation of Article 3 of the Convention with regard to the conditions of reception. Nor has there been a violation of Article 13 in combination with Article 3 as regards the procedure for asylum and regularisation.

The conditions of reception

2. As mentioned in the judgment (see paragraph 140), the period relevant for the Court ’ s assessment is from 26 September 2011, when the applicants were required to leave the reception centre in Saint-Trond, until 25 October 2011, when the applicants voluntarily left Belgium for Serbia. The question is whether there was a violation of Article 3 of the Convention due to the conditions of reception during these 29 days.

3. It is important to note that the Belgian authorities had decided, after having obtained the consent of the French authorities and in accordance with the relevant EU legislation (Article 16 § 1 of Council Regulation (EC) no. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national), that the applicants were to be returned to France as the first asylum country responsible for assessing the applicants ’ asylum request, and the applicants had been ordered to leave the country. However, the applicants refused to comply with the order and decided to remain in Belgium, and their stay was thus illegal according to domestic legislation.

4. A foreigner who wilfully disobeys a decision to leave a country and decides to remain in the country illegally cannot expect to be treated in the same way as foreigners who are residing in the country lawfully while their request for asylum or regularisation is being processed by the authorities. That being stated, it goes without saying that although they were illegally resident in Belgium the applicants were protected by Article 3 of the Convention.

5. Under Belgian legislation (the Reception Act) as it was interpreted at the relevant time and prior to the subsequent rulings of the CJEU in C ‑ 179/11, judgment of 27 September 2012, and C-79/13, judgment of 27 February 2014 (see paragraphs 105-106 of the judgment), the obligation to provide for the applicants ’ material needs ceased to apply when a decision to return the applicants to France as the first asylum country had been adopted and they had been ordered to leave the country. Thus, the general obligation under domestic legislation for the Belgian authorities to provide for the applicants ’ material needs no longer applied, as the applicants were unlawfully resident in Belgium (see paragraph 84 of the judgment). On the contrary, it was for the French authorities, in accordance with EU legislation, to care for the applicants and to provide for their material needs. In other words, the applicants no longer had a general right under Belgian legislation (the Reception Act) to have their material needs provided for in the same manner and at the same level as had been the case from 1 April 2011 until 26 September 2011.

6. In assessing whether Article 3 of the Convention was violated, it is important to notice that Article 3 of the Convention does not as such guarantee social and economic rights. More specifically, Article 3 does not guarantee a general right to appropriate accommodation or to assistance to provide for basic and material needs (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 249, ECHR 2011). Failure to provide persons with accommodation and material needs may, in exceptional circumstances, raise an issue under Article 3 of the Convention, in particular when such a right has entered into positive law (see M.S.S. v. Belgium and Greece , cited above, §§ 250-253 and 263).

7. A foreigner cannot, by wilfully disobeying an order to leave a country and deciding to stay in the country illegally, create a de facto situation where the country in question has a positive obligation under Article 3 of the Convention to provide for the foreigner ’ s material needs, including accommodation, health care, clothing and food, in the same way as foreigners who are lawfully resident in the country. That would, in my view, amount to creating an independent right to social and economic rights under Article 3 of the Convention.

8. The fact that the general obligation under domestic legislation (section 1 of the Reception Act) and EU legislation (Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seeker s), as interpreted at the relevant time, to provide for the applicants ’ material needs had ceased to apply from the moment the applicants ’ stay in the country became illegal (see paragraph 84), did not imply that the applicants were left without access to any support from the Belgian authorities. They did have access to some support, albeit in a more restricted form and of a different and lower level.

9. Thus, on 5 October 2011 (see paragraph 47) the applicants were admitted to the transit centre in Woluwe-Saint-Pierre, where they stayed for two days. On 7 October 2011 (see paragraph 48) the applicants were assigned to the reception centre for asylum-seeker s in Bovigny as their mandatory place of registration . However, according to the information provided by the authorities, the applicants never showed up at the Bovigny centre (see paragraph 49). For reasons unknown to the Court, the applicants did not wish to make use of the accommodation offered. In my view, there is no basis for questioning the information provided by the Belgian Government to the effect that the applicants did not turn up at the centre.

10. Furthermore, the applicants did have access to some social aid, irrespective of the illegal nature of their residence in Belgium. In particular, the applicants could have contacted the CPAS having territorial jurisdiction and asked for assistance in accordance with section 60 of the Reception Act (see paragraph 86). They could also have contacted the Fedasil and requested assistance in accordance with section 7 §§ 1 and 2 or section 25 § 4 of the Reception Act (see paragraphs 85 and 87). Furthermore, they could have requested urgent medical assistance and essential material aid from the CPAS in accordance with section 57 § 2 of the Act laying down organisational principles (see paragraph 72). This would in particular have been feasible had the applicants gone to the Bovigny reception centre for asylum-seeker s, as they were encouraged to do. Furthermore, had their requests been rejected and assistance refused them , it would have been possible to challenge such a refusal before the employment t ribunal (see paragraphs 88-91). The fact that the applicants did not show up at the assigned centre and that they failed to make use of available remedies should not be held against the respondent Government.

11. To conclude, and having particular regard to the interpretation of the domestic legislation at the relevant time, the accommodation offered to the applicants, the possibility to seek social assistance and the brief duration of the period in question, the required minimum level of severity under Article 3 has not been reached. Therefore, in my view, there has been no violation of Article 3 of the Convention as regards the applicants ’ conditions of reception from 26 September 2011 until 25 October 2011.

The procedure for asylum and regularisation

12. The applicants complain that their removal, direct or indirect, to Serbia and the refusal to regularise their stay in Belgium amounted to a violation of Article s 2 and 3 of the Convention, in that it put their oldest daughter ’ s life at risk and placed all of the applicants at risk of inhuman and degrading treatment (see paragraph 173). Furthermore, they complain that they did not have access to an effective remedy, in violation of Article 13 of the Convention (see paragraph 174).

13. As regards the complaint concerning the refusal to regularise the applicants ’ stay in Belgium, that is, the refusal to grant the applicants a residence permit for health reasons on the basis of section 9 ter of the Aliens Act, the applicants ’ request was declared inadmissible by the Aliens Office on 30 September 2011 as the medical report submitted by the applicants in support of their request did not contain the necessary information, that is, it did not mention the degree of gravity of the illness in question as required by domestic law (see paragraphs 34 and 67-70). Furthermore, the applicants did not appeal against the decision by the Aliens ’ Office.

14. By failing to submit a request in accordance with domestic legislation and by not lodging an appeal against the refusal, the applicants have not, in my view, exhausted domestic remedies (see Vučković and Others v. Serbia , no. 17153/11 and 29 other cases, § 72, 28 August 2012). Therefore, this part of the application should, as regards Articles 3 and 13, be declared inadmissible in accordance with Article 35 of the Convention.

15. The remainder of the applicants ’ complaints under Articles 3 and 13 concern the alleged risk of inhuman and degrading treatment arising from their removal, direct or indirect, to Serbia, and the lack of an effective remedy to deal with their complaint. The core of the complaint is the alleged risk of ill-treatment in Serbia and the failure of the Belgian authorities to assess their asylum request.

16. Article 3 applies if the applicant has adduced evidence capable of proving that there are “substantial grounds for believing” that, if a measure complained of were to be implemented, the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see M.S.S. v. Belgium and Greece , cited above, § 365, and Azimov v. Russia , no. 67474/11 , §§ 112-113, 18 April 2013 ). Further, in this context Article 13 only applies if the applicant has an “arguable complaint” that there has been or will be a violation of Article 3 of the Convention (see M.S.S. v. Belgium and Greece , cited above, §§ 288 and 385).

17. The applicants had requested asylum in Belgium; however, the Belgium authorities did not assess the applicants ’ asylum request. Instead, the Belgian authorities, in accordance with the relevant domestic legislation and EU legislation, decided that the applicants should be returned to France as the first asylum country responsible for assessing the applicants ’ request for asylum. The applicants were not at risk of being returned to Serbia from Belgium. If they did not leave Belgium voluntarily, they could be returned to France. Therefore, the “substantial grounds” and the “arguable complaint” must be assessed in light of the situation in France (see M.S.S. v. Belgium and Greece , cited above, §§ 341-343). France had accepted the return of the applicants in accordance with the relevant EU legislation and had thus recognised its responsibility for the applicants as asylum-seeker s; further, France is bound by the Convention.

18. There is no basis for alleging that the processing of asylum requests or the conditions of reception for asylum-seeker s in France in general are deficient and not in conformity with the requirements of the Convention, quite the contrary (see M.S.S. v. Belgium and Greece , cited above, §§ 344 ‑ 61 and 364- 68). Nor is there any basis for assuming that the applicants, in the specific circumstances of this case, would not be provided with the guarantees of Article 3 and 13 of the Convention were they returned to France. The mere fact that the applicants ’ request for asylum in France had been rejected cannot in itself justify an assumption that the applicants would not be protected by Article 3 and Article 13 in France. On the contrary, it can be assumed that the applicants could have requested a reassessment of their asylum request in France on the basis of relevant new facts. Furthermore, the Court does not convincingly argue why the applicants had an “arguable complaint”, taking into account the situation in France.

19. In my view, there is therefore no basis for finding a violation of Articles 3 and 13 had the applicants been returned to France as the first asylum country.

20. That being stated, I should like to add another observation. Even assuming that the situation in Serbia is relevant for the assessment of whether Belgium has complied with its obligations under Article 3 and 13, it is necessary to assess the relevant background information on the Roma population in Serbia.

21. It is well documented that the general situation for the Roma population in Serbia is difficult and has been criticised (see, inter alia , reports of 10 September 2013 and 23 June 2014 from the Advisory Committee on the Framework Convention for the Protection of National Minorities ; reports of 15 November 2013, 24 January 2014 and 14 February 2014 from Landinfo ; report of 22 September 2011 from the Council of Europe Commissioner for Human Rights ; the country report of 8 April 2011 from the USDOS ; COI report of 1 March 2010 from the British Home Office ).

22. However, the fact that the general situation for Roma in Serbia is difficult and has been criticised is an insufficient basis for stating that all persons of Roma origin from Serbia are entitled to protection under Article 3 of the Convention against a return to Serbia. The general background information is, in my view, not even enough to allege that there are “substantial grounds” or “an arguable complaint”. This inevitably depends on an assessment of the applicants ’ individual circumstances. Having regard to the specific circumstances of the case, including the nature of the information provided by the applicants to the Belgian authorities and their rejected asylum request in France, I find it questionable that there is a basis for alleging that there are “substantial grounds” or an “arguable complaint”; however, having regard to the reasons set out above, I do not find it necessary to take a final position on that question.

Conclusion

23. For the reasons set out above, I voted for finding no violation of Article 3 of the Convention as regards the conditions of reception, and no violation of Article 13 taken in conjunction with Article 3 as regards the procedure for asylum and regularisation. My main concern is the Court ’ s finding of a violation of Article 13 taken in conjunction with Article 3. In my view, the Court ’ s finding may have significant and negative consequences for the proper functioning of the cooperation between EU Member States regarding the processing of requests for asylum, including the return of asylum-seeker s to the first asylum country in accordance with the relevant EU legislation. In practice, the judgment may be understood as imposing an obligation on EU Member States not only to assess whether an asylum-seeker may be returned to another EU Member State as the first asylum country, but also to assess and address the alleged risk of ill-treatment in the country of origin, even when there is no basis for criticising the proper functioning of the asylum procedure or the conditions of reception for asylum-seeker s in the EU Member State which is the first asylum country.