FIFTH SECTION

CASE OF S.J. v. BELGIUM

(Application no. 70055/10)

JUDGMENT

STRASBOURG

27 February 2014

THIS CASE WAS REFERRED TO THE GRAND CHAMBER

WHICH DELIVERED JUDGMENT IN THE CASE ON

19/03/2015

This judgment may be subject to editorial revision.

In the case of S.J. v. Belgium,

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

Mark Villiger, President, Angelika Nuβberger, Boštjan M. Zupančič, Ann Power-Forde, Paul Lemmens, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 5 November 2013 and on 21 January 2014,

Delivers the following judgment, which was adopted on the last ‑ mentioned date:

PROCEDURE

1. The case originated in an application (no. 70055/10) 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 a Nigerian national, Ms S.J. (“the applicant”), on 30 November 2010.

2. The applicant was represented by Ms S. Micholt, a lawyer practising in Bruges. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department.

3. The applicant alleged that her expulsion to Nigeria would expose her to a risk of treatment contrary to Article 3 of the Convention and would infringe her right to respect for her private and family life as guaranteed by Article 8 of the Convention. She also complained of the lack of an effective remedy within the meaning of Article 13 of the Convention.

4. The President of the Section to which the application was assigned decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable, in the interest of the parties and for the proper conduct of the proceedings, not to expel the applicant pending the outcome of the proceedings before the Court.

5. By a decision of 18 December 2012 the Chamber declared the application admissible.

6. The applicant and the Government each filed further written observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Asylum proceedings

7. The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion.

8. Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age, on 26 December 2007.

9. After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007.

10. On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under 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”). On 17 September 2007 the Maltese authorities accepted the request.

11. The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 33 et seq. below).

12. Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 20 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”).

13. On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria.

14. The applicant appealed to the Aliens Appeals Board. In judgment no. 49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm.

15. No administrative appeal on points of law was lodged with the Conseil d’État against that judgment.

B. The applicant’s medical, family and social situation

16. On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment.

17. The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection.

18. In October 2007 a course of ARV treatment (a combination of Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”).

19. During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving , which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children.

20. On 27 April 2009 the applicant gave birth to a second child by the same father, M.A.

21. On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir.

22. On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament.

23. In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 44 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office.

24. On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list.

25. On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms:

“The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems...”

26. On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa.

27. On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling through Dutch and the monitoring of her own illness.

28. A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows:

“Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child.

...

Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa

Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups...

Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.”

29. A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children.

30. In the meantime, on 23 November 2012, the applicant gave birth to her third child. According to the birth certificate, M.A. was again the father.

31. On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 27 above), stating that the applicant was continuing to receive psychosocial support.

32. Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit.

C. Refusal of leave to remain on medical grounds and order to leave the country

33. On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9 ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”).

34. On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months.

35. At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling.

36. On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008.

37. On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows:

“[From] a medical point of view, ... although [Aids] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.”

38. On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for Aids was available in Malta and was accessible to non-nationals.

39. The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008.

40. On 11 March 2009 the Aliens Office revoked its decision of 20 August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 12 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh opinion from its medical adviser concerning a possible return to Nigeria.

41. On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose.

42. On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion:

“From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.”

43. On the basis of this opinion and the information received from the Nigerian embassy, the Aliens Office on 27 September 2010 refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows:

« [The] medication currently being administered to the applicant is available in Nigeria... Nigeria has numerous treatment programmes for the applicant’s condition... The cost is low because the authorities subsidise the medication... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.”

44. On 20 October 2010 – the asylum proceedings having been concluded in the meantime with the rejection of the applicant’s asylum application (see paragraph 14 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22 November 2010, worded as follows:

“Pursuant to the decision of ... 20 October 2010, the aforementioned S.J. and her children ... are hereby ordered to leave Belgium not later than 20 December 2010...

GROUNDS:

The applicant has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded (Act of 15 December 1980, section 7, sub-paragraph 1.2).

If the applicant fails to comply with this order she faces possible removal from the country and detention for that purpose for the time strictly necessary to enforce the measure, in accordance with section 27 of the same Act. This is without prejudice to any judicial proceedings that may be brought on the basis of section 75 of the Act.

In accordance with section 39/2, paragraph 2, of the Act of 15 December 1980, an application to set aside the present decision may be made to the Aliens Appeals Board. The application must be lodged within thirty days of notification of the present decision.

A request for a stay of execution may be lodged in accordance with section 39/82 of the Act of 15 December 1980. 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.”

45. On 26 November 2010 the applicant lodged a request under the extremely urgent procedure for a stay of execution of the Aliens Office’s decision of 20 October 2010 and the order to leave the country of 22 November 2010, together with an application to set aside those decisions. She alleged a violation of Articles 3, 8 and 13 of the Convention on account of the risk that she would not have access to the appropriate treatment if she returned to Nigeria and of the infringement of her right to respect for her private and family life.

46. The request for a stay of execution was rejected by the Aliens Appeals Board in judgment no. 51.741 of 27 November 2010. The Board gave the following reasons for its decision:

“... The applicant acted in an alert and diligent manner in lodging a request on the fourth day following notification of the impugned decision, but has not shown by means of specific evidence that a stay of execution of the measure in question granted under the ordinary procedure would be too late. The impugned order states that the applicant has until 22 December 2010 to leave the country. For the time being, the applicant is not being detained with a view to her repatriation and no date has been set for repatriation.

She simply asserts that a stay of execution under the ordinary procedure would be too late since the time taken to process requests is four to five months.

The mere fear that the impugned decision could be enforced at any time after 22 December 2010 does not mean that a stay of execution of the decision could not be granted in good time under the ordinary procedure.

In the present case it has not been shown that there is extreme urgency.

... The Board would refer to the possibility ... of lodging a request for interim measures under the extremely urgent procedure during the proceedings. In that case, [that request and the request for a stay of execution] may be examined jointly.”

47. On 8 December 2010 the applicant lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board judgment of 27 November 2010. She alleged that the risk of serious and irreversible harm in the event of her return to Nigeria, and the presence of her two young children, had not been specifically taken into consideration, and that appeals to the Aliens Appeals Board were ineffective.

48. On 24 December 2010 the time-limit for enforcement of the order to leave the country was extended by the Aliens Office for one month, as follows:

“Grounds: exceptional reason (awaiting decision by European Court of Human Rights).

Please request a further extension each month. The request will be reviewed each month in the light of developments in the case.”

49. On 6 January 2011 the Conseil d’État declared the appeal against the Aliens Appeals Board judgment of 27 November 2010 inadmissible. According to the Conseil d’État , the arguments relied on by the applicant, even supposing that they were admissible, were in any event manifestly unfounded, since the assessment of extreme urgency was a matter for the first-instance court alone and the applicant could still submit a request for a stay of execution under the ordinary procedure together with a request for interim measures made during the proceedings. She therefore had effective remedies available to her.

50. According to the information in the file, the application to set aside the decisions of the Aliens Office (see paragraph 47 above) is still pending before the Aliens Appeals Board. In reply to a letter from the applicant asking whether a hearing date had been set, the registry of the Aliens Appeals Board informed her in a letter of 14 May 2012 that the court was making every effort to ensure that her case was dealt with as quickly as possible.

51. On 11 February 2013, following a request from the Government made in the context of the proceedings before the Court, the Aliens Office’s medical adviser prepared a fresh report on the applicant’s medical situation on the basis of a medical certificate issued by the University Hospital in 2010 (see paragraph 22 above). The report noted that the applicant was receiving daily therapy using a combination of three drugs (Kivexa, Telzir and Norvir). The report continued as follows:

“It appears from the medical certificate of 25 November 2010 that the applicant is making good progress and that her immunity has stabilised at 447 with a viral load that was undetectable on 5 May 2010. We have no other medical certificates providing clinical and immunological data after November 2010 and/or concerning a change in the applicant’s medical condition or her medication.

The aforementioned medical certificate of 25 November 2010 does not show that travel was or is strongly contra-indicated for this patient [or that she] is in need of medical attention.

As regards the availability of medication and monitoring in the patient’s country of origin, Nigeria, the following sources were consulted (this information has been added to the patient’s administrative file):

- information from the MedCOI database ... of local doctors working in the patient’s country of origin who work on a contract basis for the medical advisory service of the Dutch Ministry of the Interior, dated 1 June 2011 ... and 28 March 2012...;

- information from the site http:/www.abuth.org ...;

- information from the site http:/www.buth.org ...;

- information from the site http:/www.who.int/selection_medicines/country_lists, ..., containing a list of the main drugs available in Nigeria in 2010.

It is clear from this information that drug therapy using a combination of abacavir, lamivudine and protease inhibitors is available in Nigeria. The information shows that the current availability of fosamprenavir in Nigeria is not confirmed, but that other protease inhibitors are available as an alternative, for instance a preparation combining lopinavir and ritonavir...

Laboratory tests (to determine CD4 count) are available in Nigeria. Treatment/monitoring by a specialist in internal medicine is also available in that country.”

D. Intervention by the Court in the context of interim measures

52. On 30 November 2010 the applicant applied to the Court requesting interim measures under Rule 39 of the Rules of Court, with a view to staying execution of the order to leave the country. She relied in particular on the risks to herself and her children in the event of their expulsion to Nigeria, on account of her state of health. While acknowledging that the domestic proceedings had not been concluded, she argued that the remedies in question did not suspend her removal.

53. On 17 December 2010, under Rule 39 of the Rules of Court, the Court indicated to the Government that they should not expel the applicant and her children pending the outcome of the proceedings before the Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Procedure for granting leave to remain on medical grounds

54. The provisions applicable to requests for leave to remain on medical grounds lodged with the Aliens Office under section 9 ter of the Aliens Act are set out in the judgment in Yoh-Ekale Mwanje v. Belgium (no. 10486/10, §§ 67 and 68, 20 December 2011).

55. The Aliens Appeals Board recently ruled on the relationship between the above-mentioned section 9 ter of the Aliens Act and Article 3 of the Convention (Aliens Appeals Board judgments nos. 92.258, 92.308 and 92.309 of 27 November 2012), as follows:

“3.3. The Board observes that the legislative amendment of the former section 9(3) of the Act, by means of the enactment of section 9 ter , transposed Article 15 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Nevertheless, in adopting the wording of section 9 ter of the Act the legislature’s intention was to oblige the defendant to subject the alleged illnesses to a more thorough assessment than that arising out of the case-law relied on by the defendant. Hence, rather than referring purely and simply to Article 3 ECHR in order to define the extent of the assessment that must be carried out by the defendant, the legislature made provision for a number of specific situations.

Paragraph 1 of section 9 ter refers in fact to three types of illness which should result in a residence permit being granted on the basis of that provision where no appropriate treatment exists in the country of origin or the country of residence, namely:

- those entailing a real risk to life;

- those entailing a real risk to physical well-being;

- those entailing a real risk of inhuman or degrading treatment.

It follows that the wording of section 9 ter cannot be interpreted as systematically requiring a risk ‘to the life’ of the applicant since it makes provision, in addition to a risk to life, for two further possible situations.”

56. In judgments nos. 225.522 and 225.523 of 19 November 2013 the Conseil d’État quashed the aforementioned judgments nos. 92.258 and 92.309 of the Aliens Appeals Board. It noted that Article 15(b) of the Qualification Directive (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted), which corresponded in substance to Article 3 of the Convention, had been transposed into Belgian law by section 9 ter of the Aliens Act. In adopting the latter provision, the legislature had clearly and legitimately sought to reserve the benefit of section 9 ter to foreign nationals who were so “seriously ill” that their expulsion would amount to a violation of Article 3 of the Convention, and to ensure that the assessment in question was carried out in accordance with the Court’s case-law as established in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008). The fact that section 9 ter referred to three specific situations did not mean that its scope differed from that of Article 3. The three types of illness, where they attained a minimum level of severity – which had to be high – were apt to satisfy the requirements of Article 3. The Conseil d’État concluded that the Aliens Appeals Board had unduly extended the scope of section 9 ter by ruling that this provision obliged the Belgian State to carry out a more extensive assessment than that arising out of the case-law concerning Article 3 of the Convention.

57. A few days later, in judgment no. 225.632 of 28 November 2013, a different division of the Conseil d’État came to the opposite conclusion. The judgment adopted the same interpretation of section 9 ter of the Aliens Act as that adopted by the Aliens Appeals Board in judgments nos. 92.258, 92.308 and 92.309 of 27 November 2012 (see paragraph 55 above). The Conseil d’État dismissed the arguments of the Belgian State based on European law, noting that the minimum standards of protection laid down by the Convention and the Qualification Directive could not be relied on in order to narrow the scope of the Belgian legislation.

B. Expulsion from the country

58. As a rule, any decision refusing leave to remain is followed by an order to leave the country. Enforcement of such an order is governed by section 7 of the Aliens Act. The provisions relevant to the present case read as follows:

“Without prejudice to more favourable provisions contained in an international treaty, the Minister or his or her representative may issue aliens who have not been given leave to enter or reside in the Kingdom for more than three months, or to settle there, with an order to leave the country within a certain period. In the cases referred to in sub-paragraphs 1, 2, 5, 11 and 12, he or she shall be required to issue an order to leave the country within a certain period:

...

(2) If the alien has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded;

...

Subject to application of the provisions of Title III quater , the Minister or his or her representative may, in the cases referred to in section 74/14, paragraph 3, remove the person concerned.

Unless other sufficient but less coercive measures can be applied effectively, the alien may be detained for this purpose for the time strictly necessary for enforcement of the measure, especially where there is a risk of flight or where the alien concerned is seeking to evade or prevent preparations for his or her return or the expulsion procedure. The length of such detention may not exceed two months.

...”

59. The time-limit for leaving the country and possible extensions thereto are laid down in section 74/14 of the Aliens Act, which reads as follows:

“1. The expulsion order shall stipulate a time-limit of thirty days for leaving the country.

In the case of third-country nationals who, in accordance with section 6, are not authorised to reside for more than three months in the Kingdom, the time-limit shall be between seven and thirty days.

Following a reasoned request submitted by the third-country national to the Minister or his or her representative, the time-limit for leaving the country referred to in the first sub-paragraph shall be extended where evidence is produced demonstrating that voluntary return is not possible within the prescribed time-limit.

If necessary, this time-limit may be extended, following a reasoned request submitted by the third-country national to the Minister or his or her representative, in order to take account of specific circumstances such as the length of residence, the existence of children attending school, the finalisation of arrangements for voluntary departure and other family and social ties.

The Minister or his or her representative shall inform the third-country national in writing that the time-limit for voluntary departure has been extended.

...”

60. Minor children are subject to the same regime as the adult accompanying them and must also leave the country if the adult is not given leave to remain in Belgium. At the time of the events in the present case, the Minister for Migration and Asylum Policy had issued a decision to the effect that families with children who were unlawfully resident would no longer be placed in detention in closed facilities unless they had been refused entry to the country at the border. The families concerned were therefore accommodated in “open centres” and invited to cooperate in plans for their voluntary departure.

61. In May 2011 the Secretary of State for Migration and Asylum Policy announced the construction of accommodation specifically designed for families with children, in closed facility 127 bis in Steenokkerzeel, near Brussels Airport. A new section was inserted in the Aliens Act by means of an Act dated 16 November 2011, making explicit provision for families with minor children to be held pending their expulsion, and worded as follows:

Section 74/9

“1. Families with minor children who have entered the Kingdom without satisfying the requirements laid down in sections 2 or 3, or whose residence status has ceased to be regular or is irregular, shall in principle not be placed in facilities of the kind referred to in section 74/8, paragraph 2, unless the facility in question is adapted to the needs of families with minor children.

...”

C. Appeals to the administrative courts

62. Individual decisions taken by the administrative authorities regarding the residence and expulsion of aliens may be the subject of an appeal to the Aliens Appeals Board. The Aliens Appeals Board 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 duties, 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 before the Aliens Appeals Board is governed by a royal decree of 21 December 2006.

63. Decisions taken by the Aliens Office under section 9 ter of the Aliens Act may be the subject of an application to set aside under section 39/2 of the Aliens Act.

64. The application to set aside does not suspend enforcement of the measure in question. Under the legislation, 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, in accordance with section 39/82 of the Aliens Act, which reads as follows:

“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 damage.

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 to set aside.

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.

...”

65. Section 39/83 of the Act specifies that the expulsion or removal order may not be enforced until at least three working days (any day except Saturday, Sunday or statutory public holidays) after notification of the measure.

66. If the person concerned opts for the “ordinary” procedure in applying for a stay of execution, he or she may request the indication of interim measures, possibly as a matter of extreme urgency, in accordance with section 39/84 of the Act, which reads as follows:

“Where a request has been lodged with the Board for a stay of execution of a decision in accordance with section 39/82, the Board shall have sole jurisdiction, on an interim basis and in the circumstances set forth in section 39/82, paragraph 2, first sub-paragraph, to order any measures required in order to safeguard the interests of the parties or of persons with an interest in the resolution of the case, with the exception of measures relating to civil rights.

These measures shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned judgment of the President of the division with jurisdiction to rule on the merits or by the aliens appeals judge whom he or she has designated for that purpose.

In cases of extreme urgency interim measures may be ordered without evidence having been heard from some or any of the parties.

Section 39/82, paragraph 2, second sub-paragraph, shall apply to judgments given under this section.

The King shall lay down, by a decree approved by the Cabinet, the procedure governing the measures referred to in the present section.”

67. The examination of a request for interim measures as a matter of extreme urgency follows the procedure laid down by section 39/85 of the Act, which reads as follows:

“If the alien is the subject of an expulsion or removal order which is to be enforced imminently, and has already lodged a request for a stay of execution, he or she may seek, on the basis of interim measures within the meaning of section 39/84, to have the request for a stay of execution examined without delay provided that the Board has not yet ruled on it.

The request for interim measures and the request for a stay of execution shall be examined jointly and dealt with within forty-eight hours of receipt by the Board of the request for interim measures. If the Division President or the aliens appeals judge concerned does not give a decision within that time, the First President or the President must be informed and must 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.

Once the request for interim measures has been received, the expulsion or removal order may not be enforced until the Board has ruled on the request or has rejected it. If no stay of execution is granted the measure shall again become enforceable.”

68. 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 must be imminent (section 39/82, paragraph 4, second sub ‑ paragraph, and section 39/85, first sub-paragraph, of the Aliens Act). This requirement is 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.”

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

70. The provisions cited above must also be construed in the light of their interpretation by the Aliens Appeals Board in seven judgments of the General Assembly of 17 February 2011 (nos. 56.201 to 56.205, 56.207 and 56.208), following the judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, ECHR 2011). The Board held, in particular, that in order to meet the criteria of a remedy with automatic suspensive effect, a request for a stay of execution under the extremely urgent procedure should be considered to have automatic suspensive effect even if it was submitted outside the time-limit of three working days laid down by section 39/83, but within the fifteen-day time-limit specified by section 39/57 (the time-limit applied to aliens placed at the Government’s disposal). The Aliens Appeals Board further held that if the alien in question had lodged an ordinary request for a stay of execution and the enforcement of the expulsion or removal order became imminent, he or she could lodge a request for interim measures as a matter of extreme urgency. Such a request, according to the text of section 39/85 itself, also automatically suspended enforcement of the expulsion or removal order.

71. The Constitutional Court, in examining an application for judicial review of the Act of 15 March 2012 amending the Aliens Act, which introduced an expedited procedure for asylum seekers from “safe” countries, ruled in judgment no. 1/2014 of 16 January 2014 on the issue whether applications to set aside and requests for a stay of execution under the extremely urgent procedure satisfied the criteria of effectiveness required by this Court’s case-law concerning Article 13 of the Convention taken in conjunction with Article 3.

72. The Constitutional Court set aside the impugned Act in part, on the ground that since the Aliens Appeals Board was not required to examine, on the basis of possible fresh evidence submitted to it, the current circumstances of the persons concerned – that is to say, their circumstances at the time of the Board’s decision – in the light of the situation in their country of origin, possible applications to set aside and requests for a stay of execution under the extremely urgent procedure made to that judicial body did not ensure the “close”, “thorough” and “rigorous” scrutiny of the applicants’ circumstances required by this Court (see M.S.S. , cited above, §§ 387 and 389, and Yoh-Ekale Mwanje , cited above, §§ 105 and 107).

73. Observing in addition that the aforementioned extension (see paragraph 70 above) of the suspensive effect of a request for a stay of execution under the extremely urgent procedure had not stemmed from a legislative amendment but from a judicial interpretation, the Constitutional Court stressed that the aliens in question had no guarantee that the Aliens Office would adapt its practice in all circumstances in line with that case ‑ law, and found that situation to be inconsistent with the Court’s case ‑ law (see ÄŒonka v. Belgium , no. 51564/99, § 83, ECHR 2002 ‑ I, and Gebremedhin [Gaberamadhien] v. France , no. 25389/05, § 66, ECHR 2007 ‑ II).

74. An appeal on points of law may be lodged with the Conseil d’État against a judgment of the Aliens Appeal Board dismissing an application to set aside. The appeal does not have suspensive effect.

D. Appeals before the ordinary courts

75. Under the terms of Articles 144 and 145 of the Constitution, the courts have jurisdiction to examine appeals concerning individual rights. Article 584 of the Judicial Code provides for the possibility of submitting an urgent or ex parte application to the President of the Court of First Instance, as follows:

“The President of the Court of First Instance shall issue an interim order in cases where he finds that there is urgency, in relation to all matters save those in respect of which, by virtue of statute, the courts have no jurisdiction.

...

The matter shall be brought before the President by means of an urgent application or, where absolutely necessary, by means of an ordinary application.”

76. The first-instance decision is subject to appeal and the appeal judgment in turn may be the subject of an appeal on points of law.

77. The urgent application does not have suspensive effect.

III. MEDICAL TREATMENT OF HIV INFECTION AND AIDS IN NIGERIA

78. The epidemiological data published by the Nigerian National Agency for the Control of AIDS (NACA) in a 2012 report ( Global Aids Response, Country Progress Report ) read as follows:

“Nigeria carries the second heaviest burden of HIV in Africa and has an expanding population of People Living with HIV (PLHIV). Despite challenges in scaling up access, institutional reforms and political commitment to tackle the diseases, the country has seen more citizens placed on life saving medication. ...

Table 1 - Epidemiology of HIV in Nigeria: Key Facts 2008-2012

National Median HIV Prevalence 2008: 4.6% - 2012: 4.1%

Estimated Number of PLWHIV 2008: 2.980,000 – 2012: 3,459,363

Annual AIDS Death 2008: 192,000 – 2012: 217,148

Number requiring ARV Therapy 2008: 857,455 – 2012: 1,449,166

New HIV Infections 2008: 336,379 – 2012: 388,864

Total Number of AIDS Orphans 2008: 2,175,760 – 2012: 2,193,745”

79. The information published by the United Kingdom’s UK Border Agency includes the following data:

Nigeria Country of Origin Information (COI) Report, 14 June 2013

“ 26.14 Avert.org, in its undated (circa 2010) HIV and AIDS in Nigeria section (accessed 19 December 2012), recorded:

‘In Nigeria, an estimated 3.6 percent of the population are living with HIV and AIDS. Although HIV prevalence is much lower in Nigeria than in other African countries such as South Africa and Zambia, the size of Nigeria’s population (around 162.5 million) means that by the end of 2009, there were an estimated 3.3 million people living with HIV ... Approximately 220,000 people died from AIDS in Nigeria in 2009. With AIDS claiming so many lives, Nigeria’s life expectancy has declined significantly. In 2010 the overall life expectancy was only 52 years.’

26.15 The US State Department 2011 report on Human Rights Practices, released 24 May 2012, noted that there was widespread societal discrimination against persons with HIV/AIDS. The public considered the disease a result of immoral behavior and a punishment for homosexual activity. Persons with HIV/AIDS often lost their jobs or were denied health care services. Authorities and NGOs sought to reduce the stigma and change perceptions through public education campaigns.

26.16 The UNAIDS 2010 report on the Global AIDS Epidemic noted that HIV incidence has fallen by more than 25% between 2001 and 2009 in a number of sub-Saharan African countries, including Nigeria. However a Vanguard article of 10 December 2012, ‘Nigeria Needs Over N700 Billion for Anti-Retroviral Drugs – NACA’, observed:

‘Prof. John Idoko, the Director-General, National Agency for the Control of AIDS (NACA), says more than N700 billion is needed to achieve universal access to antiretroviral (ARVs) drugs in Nigeria ... He explained that there was a huge gap between persons accessing anti-retroviral drugs and those requiring them, stressing that government must commit resources towards meeting their need. “Presently, only 432,000 persons living with HIV and AIDS (PLWHA) are accessing the drugs in contrast with the 1.5 million people needing it. We have realised that the Federal Government need to commit more funds to this cause; drugs are critical they interrupt transmission”, he said.

Idoko said that government should focus more on making HIV treatment cheaper by reducing the cost of drugs and tests, adding that there was the need to strengthen the health systems. The director-general said that 12 states had HIV burden, adding that PMTCT gap should be closed by ensuring that all pregnant women had access to services to reduce new infections.

The ARFH [Association for Reproductive and Family Health] President, Prof. Oladapo Ladipo, said that Nigeria had an estimated burden of 17.5 million Orphans and Vulnerable Children (OVCs), stressing that 2.3 million of them were orphaned by AIDS.

He said that presently an estimated 360,000 children were HIV positive, and that care and support for OVCs should be focused on ... The Managing Director, Society for Family Health, Mr Bright Ekweremadu, said that the society had embarked on HIV counseling and testing for 1.8 million Nigerians.’

26.17 Information obtained from MedCOI (medical advisors in the country of origin via the Dutch Ministry of Interior and Immigration Service) sources in February 2013 indicated that the following antiretroviral medications were available in Nigeria at the time: Abacavir, Didanosine, Emtricitabine, Lamivudine, Stavudine, Tenofovir, Zalcitabine, Zidovudine; Enfuvirtide; Efavirenz, Nevirapine; Amprenavir; Indinavir; Lopinavir/Ritonavir (=Kaletra); Saquinavir Mesylate; Efavirenz+Emtricitabine+ Tenofovir (=Atripla); Zidovudine+Lamivudine (= Combivir); Abacavir+Lamivudine (=Epzicom); Abacavir+Zidovudine+Lamivudine (=Trizivir); Tenofovir+ Emtricitabine(=Truvada).”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 13 AND OF ARTICLES 3 AND 8 OF THE CONVENTION

80. The applicant alleged that substantial grounds had been shown for believing that, if she returned to Nigeria, she ran the risk there of being subjected to inhuman and degrading treatment contrary to Article 3 of the Convention. Article 3 provides:

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

81. The applicant further alleged that the Belgian authorities’ refusal to grant her leave to remain infringed her right to respect for her private and family life. She relied on Article 8 of the Convention, which provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

82. The applicant also complained of a violation of Article 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. Alleged violation of Article 13 of the Convention

83. The Court observes that, in its decision on the admissibility of the application, it found that the Government’s objection of failure to exhaust domestic remedies in respect of the complaints of violations of Articles 3 and 8 of the Convention should be joined to the examination of the merits of the complaint under Article 13 of the Convention taken in conjunction with Articles 3 and 8, and should be examined in that context (see S.J. v. Belgium (dec.), 18 December 2012, § 60).

1. The parties’ submissions

84. The applicant alleged that she had not had an effective remedy in respect of her complaints under Articles 3 and 8 of the Convention by which to challenge the order to leave the country. As her application to the Aliens Appeals Board to set aside that order, which was still pending, did not suspend her expulsion, she had lodged a request with that court under the extremely urgent procedure for a stay of execution of the order to leave the country, with a view to obtaining a ruling on the merits of her complaints before she was expelled. However, that procedure had proved fruitless because she had not been in detention and could therefore not establish the urgency of the situation. She stressed that the Aliens Appeals Board applied the same case-law when examining requests for interim measures as a matter of extreme urgency in the context of requests for a stay of execution under the ordinary procedure.

85. The applicant maintained that this case-law made it impossible in practice for her to make use of the only procedural remedy in Belgian law capable of leading to the automatic suspension of the order to leave the country that had been served on her. It was the policy of the Belgian Government not to arrest or detain families with children with a view to their deportation. Accordingly, and paradoxically, the absence of coercive measures against her had deprived the applicant from the outset of the possibility of having her complaints under Articles 3 and 8 examined in a manner consistent with Article 13 of the Convention.

86. As the other procedures existing in Belgian law with a view to suspending the enforcement of an expulsion order – the ordinary procedure for a stay of execution before the Aliens Appeals Board and an urgent application to the ordinary courts – did not automatically suspend execution of the measure, the applicant had had no choice, following the refusal by the Board of her request for a stay of execution, but to ask the Court to indicate interim measures.

87. The Government submitted that the refusal by the Aliens Appeals Board of the applicant’s request under the extremely urgent procedure for a stay of execution of the order to leave the country was explained by the absence of any coercive measures against her. Under Belgian law, in practice, an alien could not be removed from the country without having previously been detained in a closed facility or held in a transit zone. Such detention represented the coercive measure required in order to lodge an application under the extremely urgent procedure. The reason for this requirement was that an order to leave the country without any coercive measure could only be executed on a voluntary basis by the alien concerned.

88. However, it was inaccurate to state, according to the Government, that the presence of minor children precluded the use of coercive measures. On the contrary, the Aliens Act provided for families with minor children to be detained pending their expulsion. The children were subject to the same regime as the adult accompanying them.

89. Following the dismissal of her application to set aside, and as suggested to her by the Aliens Appeals Board in its judgment of 27 November 2010 refusing her request for a stay of execution under the extremely urgent procedure, the applicant should have lodged another application to set aside together with an ordinary request for a stay of execution of the order to leave the country, followed – if applicable – by a request for interim measures as a matter of extreme urgency. In that case, under section 39/85 of the Aliens Act, the Aliens Appeals Board would have been obliged to examine the requests for a stay of execution and for interim measures jointly and to rule within forty-eight hours of receipt of the request for interim measures. That procedure would have been effective, since the expulsion measure could not have been enforced until such time as the Board had given its decision.

90. Furthermore, had the procedure before the Aliens Appeals Board been unsuccessful, the applicant could still have made an urgent application to the ordinary courts seeking an order prohibiting her expulsion.

2. The Court’s assessment

91. The Court considers that the applicant had, prima facie, arguable complaints before the domestic courts under both Article 3 and Article 8 of the Convention. Accordingly, Article 13 is applicable.

92. The Court notes that the Government did not suggest that the applicant could not claim to be a victim of an alleged violation of the Convention because of the absence of coercive measures (see paragraphs 79 to 82 above).

93. The Court observes, in the light of the applicable statutory provisions and the case-law concerning them (see paragraphs 46 and 67 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 the order to leave the country issued to the applicant was therefore liable to be executed at any time from 22 December 2010 onwards. The Court considers that this fact is sufficient for it to conclude that the applicant had the right to a remedy by which her complaints could be examined effectively.

94. The Court refers in that regard to the general principles concerning the effectiveness of remedies and the guarantees to be afforded by Contracting Parties under Article 13 taken in conjunction with Article 3 in the event of the expulsion of an alien, as summarised in the judgment in M.S.S. v. Belgium and Greece ([GC], no. 30696/09, §§ 286-93, ECHR 2011; see also, more recently, I.M. v. France , no. 9152/09, §§ 127 ‑ 35, 2 February 2012, and De Souza Ribeiro v. France [GC], no. 22689/07, §§ 77- 83, ECHR 2012).

95. The Court notes that under Belgian law an application to the Aliens Appeals Board to set aside an order to leave the country or a refusal of leave to remain does not suspend enforcement of the expulsion measure. However, the Aliens Act lays down specific procedures for requesting a stay of execution, either under the extremely urgent procedure or under the “ordinary” procedure (see paragraphs 64 to 73 above).

96. A request for a stay of execution under the extremely urgent procedure automatically suspends enforcement of the expulsion measure. In such cases the Aliens Appeals Board, on the basis in particular of an examination of the serious nature of the arguments alleging a violation of the Convention, may order, within seventy-two hours, a stay of execution of the impugned decision, thereby ensuring that the persons concerned are not deported before their arguments have been examined in detail in the context of the application to set aside the decision.

97. The Government pointed out, as stressed by the Aliens Appeals Board in its judgment of 27 November 2010 (see paragraph 46 above), that a 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 as a matter of extreme urgency 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 expulsion measure.

98. 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 as a matter of extreme urgency require the existence of a coercive measure in order to be declared admissible and well founded (see paragraphs 46 and 67 above).

99. In the instant case the applicant applied to the Aliens Appeals Board, lodging an application to set aside and a request for a stay of execution under the extremely urgent procedure against the decision refusing her application to have her residence status regularised and the order to leave the country, issued by the Aliens Office on 20 October and 22 November 2010 respectively. The Aliens Appeals Board observed that in the absence of any coercive measures against her, the applicant had not demonstrated the extreme urgency of her situation. It therefore rejected her request for a stay of execution under the extremely urgent procedure on those grounds, in a judgment of 27 November 2010.

100. The applicant alleged that in thus rejecting her request for a stay of execution, the Aliens Appeals Board, contrary to the Court’s case-law on Article 13 taken in conjunction with Article 3 of the Convention, had deprived her of the only possibility under Belgian law of obtaining automatic suspension of the expulsion measure, which was liable to be enforced at any time after 22 December 2010.

101. The Government, for their part, submitted that the applicant should have made use, as suggested to her by the Aliens Appeals Board in its judgment of 27 November 2010, of the other combination of remedies available, namely an application to set aside the order to leave the country and a request for a stay of execution under the ordinary procedure, followed at the appropriate juncture by a request for interim measures as a matter of extreme urgency.

102. The Court observes that this system, as described above (see paragraphs 96 and 97 above), obliges the alien concerned, who is the subject of an expulsion measure and maintains that a stay of execution of that measure is 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 does not have suspensive effect, has to be lodged for the sole purpose of retaining the right to take urgent action when the matter attains real urgency as defined by the case-law of the Aliens Appeals Board, that is, when a coercive measure is applied against the alien. The Court further observes that if the person concerned has not set this precautionary application in motion at the outset of the procedure, and the matter subsequently becomes urgent, he or she has no further opportunity to request a stay of execution of the expulsion measure.

103. In the Court’s view such an arrangement, while it may be effective in theory, is in practice difficult to implement and too complex to satisfy the requirement under Article 13 taken in conjunction with Article 3 for remedies to be available and accessible in law and in practice (see Çakıcı v. Turkey [GC], no. 23657/94, § 112, ECHR 1999 ‑ IV; M.S.S. , cited above, § 318; and I.M., cited above, § 150). It also notes that if, in the circumstances described above (see paragraph 102 in fine ), the alien concerned does not withdraw his or her initial application to set aside in order to resubmit it, this time accompanied by a request for a stay of execution under the ordinary procedure, the system advocated by the Government could give rise to situations in which the alien does not actually have the protection of a suspensive remedy either during the proceedings challenging the expulsion order or when his or her removal becomes imminent. That is what happened in the present case, despite the fact that the applicant was being advised by a specialist lawyer. In view of the importance of the right protected by Article 3 and the irreversible nature of expulsion, such a situation is incompatible with the requirements of the aforementioned Convention provisions (see, among other authorities, Gebremedhin [Gaberamadhien] v. France , no. 25389/05, § 66, ECHR 2007 ‑ II; M.S.S., cited above, § 293 and 388; Diallo v. the Czech Republic , no. 20493/07 , § 74, 23 June 2011; Auad v. Bulgaria , no. 46390/10 , § 120, 11 October 2011; Al Hanchi v. Bosnia and Herzegovina , no. 48205/09 , § 32, 15 November 2011; I.M. , cited above, § 58; De Souza Ribeiro , cited above, § 82; Mohammed v. Austria , no. 2283/12, § 72, 6 June 2013; and M.A. v. Cyprus , no. 41872/10, § 133, ECHR 2013 (extracts)).

104. The Court further observes 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 Others v. Belgium , no. 41442/07, 19 January 2010; Kanagaratnam v. Belgium , no. 15297/09, 13 December 2011; and Popov v. France , nos. 39472/07 and 39474/07, 19 January 2012).

105. The Court does not consider it necessary to rule on the possibility that was open to the applicant to make an urgent application to the ordinary courts (see paragraphs 75 to 77 above). It suffices for it to note that this remedy likewise does not automatically suspend enforcement of the expulsion measure and therefore also fails to satisfy the requirements of Article 13 of the Convention taken in conjunction with Article 3 (see, mutatis mutandis , Singh and Others v. Belgium , no. 33210/11, § 97, 2 October 2012).

106. In view of the foregoing analysis of the Belgian system, the Court concludes that the applicant did not have an effective remedy in the sense of one which had automatic suspensive effect and by which she could obtain an effective review of her 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.

107. It follows that the applicant cannot be criticised for not making use of the multitude of remedies before the Aliens Appeals Board or the urgent procedure before the ordinary courts in order to assert her complaint under Article 3. The Government’s objection of failure to exhaust domestic remedies in respect of the Article 3 complaint (see paragraph 83 above) must therefore be rejected.

108. In view of its findings with regard to Article 13 taken in conjunction with Article 3, and of the circumstances of the case, the Court considers that it is not necessary to examine the applicant’s complaint under Article 13 taken in conjunction with Article 8 of the Convention.

B. Alleged violation of Article 3 of the Convention

109. The applicant alleged that substantial grounds had been shown for believing that, if she returned to Nigeria, she ran the risk there of being subjected to inhuman and degrading treatment contrary to Article 3 of the Convention. Article 3 provides:

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

1. The parties’ submissions

110. The applicant pointed out that she suffered from a fatal disease and was receiving treatment in Belgium that was adjusted on a regular basis to deal with the side effects and the progress of the disease. She had also benefited from intensive psychosocial counselling since her arrival in Belgium to help her to cope, in view of her young age, with her illness and her young children. In her submission, there was no guarantee that the combination of drugs currently being administered to her – Reyataz and Kivexa – would be available in Nigeria or that a different combination would have the same impact on the progress of the disease or in terms of side effects. The information referred to by the Aliens Office’s medical adviser in his 2013 report, which had prompted him to conclude that ARV treatment was available in Nigeria, was obsolete as it related to a combination of drugs that was no longer suited to her needs. In addition, it did not take account of the fact that she would no longer receive the specialised medical supervision she required.

111. The applicant also maintained that ARV treatment was not accessible in all cases in Nigeria. In fact, only a minority of people living with advanced-stage HIV had access to it free of charge. The applicant had no funds and no social network and was liable to be stigmatised and discriminated against in seeking access to the labour market, in common with HIV sufferers generally and women in particular. It would therefore be very difficult if not impossible for her to fund her treatment, and a return to Nigeria would place her at risk of death within a short time in conditions of physical and mental suffering attaining the threshold of severity required by Article 3. In the applicant’s view, the Court should apply the same reasoning as in the case of D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III) and find that the difference between someone already close to death and someone who would die within a short time was minimal, and that expelling either a dying person or a person who was going to die within a short time was contrary to Article 3 of the Convention.

112. Lastly, the applicant stressed that her vulnerability was heightened by the fact that she had to take care of three young children, for whom she would be unable to provide a decent life. A return to Nigeria would expose them to the risk of being orphaned or at the very least being left to fend for themselves, in the absence of any social and family network to look after them.

113. The Government did not dispute that the applicant suffered from a disease which in itself entailed a risk to her life and her physical well-being. However, returning to Nigeria would not place her at risk of treatment contrary to Article 3 of the Convention. That risk had been assessed by the Aliens Office’s medical adviser, taking into account the applicant’s individual situation, the way her condition was developing, the medication she required and the existence of appropriate and sufficiently accessible treatment in Nigeria. In connection with the last point the Government referred to several reports, published by the NACA among others, which showed that Nigeria was implementing a policy of prevention among the most vulnerable sections of the population and had put in place a strategy of universal access to medication in public hospitals, subject to availability. The Government added that a kind of ARV treatment known as “highly active antiretroviral therapy” (HAART) now existed which produced very good results and was a combination of several drugs which all existed separately in Nigeria. The medical official’s report also showed that the applicant was fit to travel and that her condition was not of sufficient concern at this stage to prevent her return to her country of origin.

114. The Government were also aware of the stigmatisation and discrimination to which people living with HIV were subjected in Nigeria, as in the rest of sub-Saharan Africa. Nevertheless, Article 3 could not be construed to mean that a Contracting State was in breach of the Convention whenever it refused an alien leave to remain and proceeded to expel the person concerned to a country where he or she would have no means of securing a livelihood through regular and decent employment. Furthermore, it was not established that the applicant did not actually have a social and family network to assist her. Her asylum application had been rejected on the grounds that her account had not been credible, precisely with regard to her family situation (see paragraph 13 above).

115. As to psychosocial assistance, the Government maintained that the applicant had not demonstrated the need for such assistance in the medical certificates she provided to the Aliens Office, and that it was not for the administrative authorities to make further enquiries retrospectively. In any event, it was still open to the applicant to lodge a fresh application for leave to remain on the basis of section 9 ter of the Aliens Act.

116. In sum, the Government took the view that the case did not involve compelling humanitarian considerations for the purposes of the Court’s case-law as established in the judgment in N. v. the United Kingdom , cited above, and applied in Yoh-Ekale Mwanje , cited above, such as to prohibit the applicant’s return to Nigeria.

2. The Court’s assessment

117. The applicant’s complaint under Article 3 is based on her state of health and on the lack of medical treatment for her illness in her country of origin.

118. According to the Court’s case-law, the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see Pretty v. the United Kingdom , no. 2346/02, § 52, ECHR 2002 ‑ III).

119. The Court has nevertheless held previously that this does not mean that aliens who are subject to expulsion can claim entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling (see N. v. the United Kingdom , cited above, § 42).

120. The fact that the alien’s circumstances, including his or her life expectancy, would be significantly reduced if he or she were to be removed from the Contracting State is not sufficient to give rise to a breach of Article 3 (ibid.). In the Court’s view, even more compelling humanitarian considerations must be at stake in the case. In N. v. the United Kingdom and

Yoh-Ekale Mwanje , both cited above, where the applicants also suffered from Aids, the Court held that their expulsion was not such as to raise an issue under Article 3 of the Convention. The Court took into account the fact that at the time of their removal, they applicants’ condition had been stable as a result of the treatment they had received hitherto, that they were not “critically ill” and that they were fit to travel.

121. In the present case, the applicant was diagnosed as seropositive after her arrival in Belgium in 2007, in the course of an antenatal check-up. The medical certificates issued by the medical team at St Pierre University Hospital, where the applicant is receiving treatment, stated that she was currently being treated with a combination of three drugs (see paragraphs 28 and 29 above).

122. While it is true that the Court does not have any information demonstrating that these three drugs are available in Nigeria, ARV treatment is nonetheless available there, as is clear from the reports concerning the Aids epidemic in that country (see paragraph 79 above). In these circumstances, the Court does not consider it necessary to attach overriding importance to the fact that the information added to the case file by the Government in 2013 still referred to the combination of drugs prescribed for the applicant in 2010 (see paragraph 21 above), which was subsequently discontinued (see paragraph 26 above).

123. The Court is mindful of the fact that access to medication in Nigeria is haphazard and that, owing to a lack of resources, most of the persons who need it do not have access to treatment for Aids free of charge (see paragraph 78 and 79 above). It is also aware – as attested, if need be, by the medical certificates produced by the applicant to the domestic authorities and the Court – that for the applicant, as for anyone living with HIV in her situation, being deprived of essential medication could result in the deterioration of her condition and even place her life at risk in the short or medium term.

124. Nevertheless, the Court also notes that, according to the medical certificates issued in 2012 and 2013 (see paragraphs 28 and 29 above), the applicant’s condition is currently under control as a result of the medication administered at the University Hospital, and that the applicant has not developed any opportunistic infections. She is therefore not “critically ill” and is fit to travel. In the light of the principles reiterated above (see paragraphs 119 to 120), which the Court considers it necessary to apply in the present case, the information in the case file does not enable it to conclude that the threshold of severity required by Article 3 of the Convention has been attained.

125. The applicant further argued that her vulnerability was heightened by the fact that she was accompanied by her young children, who would have to watch their mother’s condition deteriorate and were in danger of being left to fend for themselves in a country where they had no social or family network. The Court considers that these factors are not capable of altering its assessment of the threshold of severity required by Article 3, but fall within the scope of the assessment of the situation from the standpoint of Article 8.

126. Accordingly, even though there are strong humanitarian considerations in the applicant’s case weighing in favour of regularising her residence status, the Court considers that these are not sufficiently compelling, from the point of view of Article 3 of the Convention, to prohibit the applicant’s return to her country of origin.

127. The Court concludes that the applicant’s expulsion to Nigeria would not entail a violation of Article 3 of the Convention.

C. Alleged violation of Article 8 of the Convention

1. The parties’ submissions

128. The applicant submitted that since arriving in Belgium in 2007 she had given birth to three children. The children had never lived in Nigeria and the two oldest were now attending school in Belgium. She argued that, owing to the standard of education in Belgium, her children had a future there which was not possible in Nigeria. Moreover, the children’s father, who was also a Nigerian national, was in Belgium and, although he did not have a residence permit, had recently moved in with the applicant and the children. He had thus been able to develop a relationship with his children; he took care of them and took them to school regularly. In the applicant’s submission, Belgium was the only country where she could live a normal family life compatible with Article 8 of the Convention with her partner and their children.

129. The Government questioned the actual existence of family life between the children and their father, in the absence of any documentary evidence of either contact rights or financial support. With regard to the relationship between the applicant and the children’s father, the Government stressed that there was no evidence whatsoever that further elements of dependency existed between them involving more than the normal emotional ties. In any event, where immigration was concerned, Article 8 could not be considered to impose on a State a general obligation to respect the choice made by aliens of the country of their residence and to authorise family reunion in its territory. Moreover, the applicant would be returning with her children, meaning that the family would be kept together.

2. The Court’s assessment

130. The Court reiterates that it did not deem it necessary to examine the complaint of a violation of Article 13 of the Convention taken in conjunction with Article 8 (see paragraph 108 above). Likewise, it considers that it can leave open the question whether the applicant exhausted domestic remedies in respect of her complaint under Article 8 taken alone. For the reasons set forth below, the latter complaint is in any case ill-founded.

131. The Court observes that the relationship between the applicant and her children, all three of whom were born in Belgium, amounts to “family life” for the purposes of Article 8 of the Convention. It does not consider it important, in the circumstances of the present case, to determine whether the existence of family life with the children’s father has been established. It simply notes that the Government did not dispute that he is the children’s father.

132. While noting that the present case concerns both the refusal by the national authorities to grant the applicant leave to remain in Belgium and the subsequent threat of her being sent back to Nigeria with her children, the Court considers that the core issue is whether the Belgian authorities were under a duty to allow the applicant to reside in Belgium, thus enabling her and her children to maintain and develop family life in that country (see, mutatis mutandis , Rodrigues da Silva and Hoogkamer v. the Netherlands , no. 50435/99, § 38, ECHR 2006-I).

(a) Recapitulation of the general principles

133. In the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. In both contexts the State enjoys a certain margin of appreciation (see, among other authorities, Powell and Rayner v. the United Kingdom , 21 February 1990, § 41, Series A no. 172, and Ahmut v. the Netherlands , 28 November 1996, § 63, Reports 1996 ‑ VI).

134. The Court has acknowledged that a State is entitled, subject to its treaty obligations, to control the entry of aliens into its territory and their residence there; the Convention does not guarantee the right of an alien to enter or to reside in a particular country. Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence (see, among many other authorities, Abdulaziz , Cabales and Balkandali v. the United Kingdom , 28 May 1985, § 67, Series A no. 94; Boujlifa v. France , 21 October 1997, § 42, Reports 1997 ‑ VI; and Nunez v. Norway , no. 55597/09, § 66, 28 June 2011).

135. However, in a case which concerns family life as well as immigration, the extent of a State’s obligations will vary according to the particular circumstances of the persons involved and the general interest (see Gül v. Switzerland , 19 February 1996, § 38, Reports 1996-I, and Rodrigues da Silva and Hoogkamer , cited above, § 39). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles to the family living in the country of origin of one or more of them and whether there are factors of immigration control or considerations of public order weighing in favour of exclusion (see Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000).

136. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. Where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 of the Convention (see Rodrigues da Silva and Hoogkamer , cited above, § 39; Darren Omoregie and Others v. Norway , no. 265/07, § 57, 31 July 2008; Nunez , cited above, § 70; and Antwi and Others v. Norway , no. 26940/10, § 89, 14 February 2012).

137. Where there are children, the crucial question is whether they are of an age at which they can adjust to a different environment (see, among other authorities, Darren Omoregie and Others , cited above, § 66, and Arvelo Aponte v. the Netherlands , no. 28770/05, § 60, 3 November 2011).

138. It is also apparent from the Court’s case-law that when families with children are involved the authorities must, in assessing proportionality for the purposes of the Convention, take account of the child’s best interests (see, among other authorities, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 134-35, ECHR 2010), including in immigration matters (see Nunez , cited above, § 84; Kanagaratnam v. Belgium , no. 15297/09, § 67, 13 December 2011; and Popov , cited above, § 109).

(b) Application of these principles in the present case

139. The Court notes that the applicant left Nigeria for Belgium at the age of seventeen. Although she has lived in Belgium for almost seven years, she was born and raised in Nigeria and has spent most of her life there.

140. The applicant lodged an asylum application as soon as she arrived in Belgium, which was rejected at last instance by the Aliens Appeals Board in a judgment of 12 October 2010 which became final. The applicant also sought, three months after her arrival in Belgium, to regularise her residence status there on account of her state of health and the birth of her first child. The Aliens Office rejected that request on 20 October 2010.

141. However, the applicant has not had regular residence status in Belgium at any time since her asylum application was rejected. The only reason she was able to remain in the country and secure an extension of the time-limit for leaving the country under the expulsion order was that the Court had indicated an interim measure which suspended her removal (see paragraph 53 above) pending a decision by the Court (see paragraph 48 above). The applicant could not therefore claim any legitimate expectation that she would eventually be granted a right of residence by the Belgian authorities. In such a precarious situation, the Court considers that the applicant’s decision to have three children and to remain in Belgium with them meant that the national authorities were presented with a fait accompli which, in the light of the principles outlined above, cannot weigh in the applicant’s favour in balancing the interests at stake.

142. The Court notes that the applicant’s children were born in Belgium and have always lived there, that the two oldest attend school there and that their expulsion to Nigeria would not necessarily be favourable to them. Nevertheless, in view of their young age – six, four and a half and one respectively – the Court is of the view that their capacity to adapt is still sufficiently great to make resettlement in their parents’ country of origin realistic. The fact that the educational opportunities would be better in Belgium than in Nigeria should not be taken into account; the Court reiterates in this regard that Article 8 does not entail a general obligation for a State to respect immigrants’ choice of the country of their residence (see paragraph 134 above).

143. Nor should the presence of the children’s father in Belgium be taken into consideration. Quite apart from the fact that his residence there is probably unlawful, the applicant did not provide any information to indicate that he should not return to Nigeria in the company of the applicant and their children in order to maintain or develop family life there.

144. In the Court’s view, this option would also reduce the risk referred to by the applicant that, if she were sent back to Nigeria, her children would have to watch their mother’s health deteriorate and would be left to fend for themselves in a country where they had no social or family network.

145. In any event – and this is decisive in the Court’s view in assessing the extent of the respondent State’s obligations in the present case with regard to family life – the Court notes that the decision taken by the Belgian authorities to expel the applicant and her children would not result in their separation as a family. The children would remain with their mother and family life could continue in Nigeria. The risk that the applicant may die prematurely, and the impact this might have on her children’s family life following their return to Nigeria, cannot give rise to an obligation for the Belgian State to grant the applicant a right of residence in Belgium.

146. In view of the foregoing, the Court considers that the Belgian authorities, in refusing to grant the applicant leave to remain, did not lend undue weight to the public interest when balanced against the interests of the applicant and her children’s best interests.

147. Accordingly, the Court considers that, even supposing that it has jurisdiction to examine the complaint of a violation of Article 8 of the Convention (see paragraph 130 above), the Belgian authorities did not overstep their margin of appreciation, with the result that their refusal to grant the applicant leave to remain did not amount to a violation of that provision.

II. APPLICATION OF RULE 39 OF THE RULES OF COURT

148. The Court observes that, in accordance with Article 44 § 2 of the Convention, this judgment will become final (a) when the parties declare that they will not request that the case be referred to the Grand Chamber; or

(b) three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested; or (c) when the panel of the Grand Chamber rejects the request to refer under Article 43.

149. The Court considers that the measures it has indicated to the Government under Rule 39 of the Rules of Court (see paragraphs 4 and 52 above) should remain in force until such time as the present judgment becomes final or the Court gives another ruling on the subject.

III. ARTICLE 46 OF THE CONVENTION

150. Article 46 of the Convention, in so far as relevant to the present case, reads as follows:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

...”

151. Under Article 46 of the Convention, the High Contracting Parties undertake to abide by the final judgment of the Court in the cases to which they are parties, the Committee of Ministers being responsible for supervising the execution of the judgments. This means that when the Court finds a violation, the respondent State is legally bound not only to pay the interested parties the sums awarded in just satisfaction under Article 41, but also to adopt the necessary general and/or, where applicable, individual measures. As the Court’s judgments are essentially declaratory in nature, it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in order to discharge its legal obligation under Article 46 of the Convention, provided that those means are compatible with the conclusions contained in the Court’s judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98 , § 249, ECHR 2000 ‑ VIII; Sejdovic v. Italy [GC], no. 56581/00 , § 119, ECHR 2006 ‑ II; and Kurić and Others v. Slovenia [GC], no. 26828/06 , § 406, ECHR 2012 (extracts)).

152. In exceptional cases, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist (see, for example, Broniowski v. Poland [GC], no. 31443/96 , § 194, ECHR 2004 ‑ V, and Kurić and Others , cited above, § 415).

153. In the present case the Court considers that the Belgian State should amend domestic law to ensure that all aliens subject to an order to leave the country can lodge, as soon as enforcement of the measure becomes possible or at the latest when steps are taken to secure its enforcement, a request for a stay of execution of the measure which has automatic suspensive effect and is not contingent on the prior lodging of another application other than an appeal on the merits. In addition, enough time must be allowed for the lodging of such a request, and the suspensive effect on the expulsion measure must remain until such time as the competent judicial body has conducted a thorough and rigorous examination of the merits of the request for a stay of execution from the standpoint of Article 3 of the Convention. This indication does not concern cases where, before the order to leave the country was issued, the alien concerned was able to obtain a review by the courts of his or her complaint under Article 3 of the Convention following proceedings that satisfied the requirements of Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

154. 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

155. The applicant claimed 5,000 euros (EUR) in respect of the non ‑ pecuniary damage she had sustained and continued to sustain because of the anxiety caused by the prospect of an imminent return to Nigeria. She also claimed a provisional amount of EUR 10,000 in respect of pecuniary damage. The sum claimed was intended to repay the debts she had incurred in providing for her needs following the rejection of her request to regularise her status and the ensuing discontinuation of the material and social assistance she had been receiving for herself and her children.

156. The Government took the view that these claims should be dismissed. Individuals seeking compensation in respect of non-pecuniary damage stemming from a possible violation of the Convention could bring an action in tort against the State. As to the alleged pecuniary damage, the Government explained that, despite her irregular residence status, the applicant was still entitled to social welfare assistance. However, she had not shown that she had requested such assistance from the competent social welfare office or had such a request refused, or that she had lodged an application with an employment tribunal.

157. As to non-pecuniary damage, the Court observes that it has found that the applicant was deprived of an effective remedy protecting her against removal from the country until such time as the Aliens Appeals Board had examined the merits of her arguable complaints of a violation of Article 3 of the Convention in the event of her return to Nigeria. The Court does not doubt that this situation caused anxiety to the applicant. However, it considers that the stay of execution of her expulsion following the indication of an interim measure by the Court was such as to remove that anxiety. In these circumstances it considers that the finding of a violation of Article 13 taken in conjunction with Article 3 of the Convention constitutes in itself sufficient just satisfaction in respect of the non-pecuniary damage alleged (see, mutatis mutandis , I.M., cited above, § 166, and Singh and Others , cited above, § 111).

158. As regards pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore dismisses the claim for just satisfaction under this head.

B. Costs and expenses

159. The applicant claimed EUR 5,000 in respect of the costs and expenses incurred in being represented before the Court. She explained that she received free legal aid and that the lump sum paid to her representative in that context was in the region of EUR 950. This was well below the actual costs incurred in the proceedings before the Court. The applicant did not provide any supporting documents.

160. The Government explained that the provision of the Judicial Code concerning legal aid prohibited court-appointed lawyers from charging their clients fees and expenses. The Government therefore understood this claim as being formulated on behalf of the applicant’s representative, who was not a party to the case. The Government therefore invited the Court to dismiss the claims or at the very least to reduce the amount substantially.

161. The Court reiterates that it does not consider itself bound by domestic scales and practices, even if it may take inspiration from them (see Venema v. the Netherlands , no. 35731/97, § 116, ECHR 2002 ‑ X, and M.S.S. , cited above, § 420). However, according to the Court’s established case-law, costs and expenses will not be awarded under Article 41 unless it is established that they were actually and necessarily incurred and were reasonable as to quantum. Accordingly, in the absence of supporting documents establishing that the costs in addition to the legal aid received by the applicant were actually incurred, the Court must reject the claim for reimbursement of costs and expenses.

C. Default interest

162. 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. Dismisses , unanimously, the Government’s preliminary objection of failure to exhaust domestic remedies in respect of the complaint of a violation of Article 3 of the Convention, having examined the case on the merits, and holds that it is not necessary to examine the Government’s objection of failure to exhaust domestic remedies in respect of the complaint under Article 8 of the Convention;

2. Holds , unanimously, that there has been a violation of Article 13 taken in conjunction with Article 3 of the Convention;

3. Holds , unanimously, that it is not necessary to examine the applicant’s complaints from the standpoint of Article 13 taken in conjunction with Article 8 of the Convention;

4. Holds , by six votes to one, that the enforcement of the decision to deport the applicant to Nigeria would not entail a violation of Article 3 of the Convention;

5. Holds , unanimously, that, even supposing that the Court has jurisdiction to examine the complaint of a violation of Article 8 of the Convention, there has been no violation of that provision;

6. Decides , unanimously, to continue its indication to the Government, under Rule 39 of the Rules of Court, that it is desirable, in the interest of the proper conduct of the proceedings, not to expel the applicant until such time as the present judgment becomes final or the Court gives another ruling on the subject;

7. Holds , unanimously, that the finding of a violation of Article 13 taken in conjunction with Article 3 of the Convention constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant as a result of the violation of those provisions;

8. Dismisses , unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in French, and notified in writing on 27 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Mark Villiger Registrar President

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) Concurring opinion of Judge Lemmens, joined by Judge Nußberger;

(b) Dissenting opinion of Judge Power-Forde.

M.V.

C.W.

CONCURRING OPINION OF JUDGE LEMMENS, JOINED BY JUDGE NUSSBERGER

(Translation)

I agree with the judgment on all points. However, I would like to add a few thoughts on the issue of the violation of Article 3 of the Convention.

The majority based its analysis mainly on the judgment in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), in which the Grand Chamber of the Court adopted the following reasoning: “The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling ” (§ 42, italics added; see paragraphs 119 and 120 of the present judgment).

We concluded, basing our findings expressly on these principles – which we considered ourselves bound to follow in the present case (see paragraph 124) – that the threshold of severity required in order for Article 3 to apply had not been attained in this case.

Like some of my former and current colleagues, I find the level at which this threshold is situated to be very high. In the case of Yoh-Ekale Mwanje v. Belgium (no. 10486/10, 20 December 2011), six of the seven judges making up the Chamber which found that there had been no violation of Article 3 noted that, according to N. v. the United Kingdom , for the removal of an alien to constitute a violation of Article 3, it was necessary for “the person [concerned] to be in the final stages of the illness, close to death”. Although they followed the approach taken by the Grand Chamber, they expressed the hope that it would revisit its case-law on this point (see the joint partly concurring opinion of Judges Tulkens, Jočienė, Popović, Karakaş, Raimondi and Pinto de Albuquerque).

Without going that far, I would stress that in the present judgment the Court found that “there are strong humanitarian considerations in the applicant’s case weighing in favour of regularising her residence status” (see paragraph 126). Even if these considerations are not “sufficiently compelling, from the point of view of Article 3 of the Convention, to prohibit the applicant’s return to her country of origin” (ibid.), they nevertheless exist.

Article 53 of the Convention allows Contracting Parties to secure to the persons within their jurisdiction more extensive protection than that required by the Convention. I observe that under Belgian law an alien may be given leave to remain in the Kingdom in “exceptional circumstances” (section 9 bis of the Aliens Act). It is left to the competent authorities to assess whether such circumstances exist. I am conscious of the fact that the term “exceptional circumstances” refers to circumstances which preclude the alien’s temporary return to his or her country of origin in order to complete the necessary formalities with a view to lodging an application for leave to remain. I am also aware that “the factors relied on in the context of a request for leave to remain on the basis of section 9 ter ” “cannot be regarded as exceptional circumstances” (section 9 bis , paragraph 2, sub ‑ paragraph 4, of the Aliens Act). Nevertheless, I wonder whether section 9 bis does not allow the Belgian authorities ­ – in the exercise of their discretionary powers of course – to attribute to the humanitarian considerations referred to in the present judgment the importance they deserve, above and beyond the requirements of the Convention.

DISSENTING OPINION OF JUDGE POWER-FORDE

While N. v. the United Kingdom represents this Court’s case-law on the expulsion of people infected with HIV, I cannot, in conscience, endorse its application in this case. If applied, it will almost certainly result in the imminent death of the applicant and the deprivation of three young children of the presence, love, care and support of their mother. Denied the medication she needed, the applicant in N. died within a few months of having been deported to her home country. [1] In all probability, the same fate awaits this applicant. It is difficult for me to see how such an outcome could be compatible, in any way, with her rights under Articles 2 or 3 of the Convention [2] .

Acknowledging that the applicant’s life expectancy would be “affected” by its decision, the Court in N. took some “comfort” from the fact that the rapidity of her deterioration involved “a certain degree of speculation” particularly in view of the evolving situation of HIV treatment worldwide [3] .

In view of N.’s rapid deterioration and death, post-expulsion, however, the “degree of speculation” open to the Court at this point has diminished considerably. Consequently, the near certainty of imminent death is a vital factor which must be taken into account in the Court’s assessment of this applicant’s claim.

Even in N. , the Court affirmed the necessity of retaining a degree of flexibility to prevent expulsion in “very exceptional cases”. In its particular gravity, this case is distinguishable from N . Firstly, there is little or no room for conjecture on the issue of access to life-saving medication. In N. the Court noted that anti-retroviral (“ARV”) medication was available in Uganda although it acknowledged that only half of those who needed it received it. The situation in Nigeria is worse. As of 2010, only 34% of those with advanced HIV infection were receiving any anti-retroviral treatment and, currently, that situation is deteriorating [4] . What is more disconcerting, however, is that this applicant appears to have no hope of obtaining the triple therapy she requires [5] because the combination she needs to survive is not among the ARV therapy currently available in Nigeria (see paragraph 79). The majority accepts that it has no information to confirm that her medication is available in Nigeria (paragraph 122) but it is, nevertheless, prepared to sanction the Belgian authorities’ decision to deport her in the knowledge that she will be deprived of life-saving treatment.

Secondly, this applicant’s particular vulnerability is marked by her young age and her position as the mother of three children. While still a minor, she was impregnated by a man with whose family she had been living since she was eleven years old. By the age of twenty-two she had become a mother to three young children to whom she provides care on a daily basis.

Thirdly, apart from the horrendous physical suffering which death from AIDS entails, this applicant, additionally, will endure the profound emotional suffering involved in watching her three young children witness their mother deteriorate and die for want of medication knowing that she is powerless to help them and conscious that they will be left as orphans after her death.

That the State, in this case, knows of the real and imminent risk to the life of the applicant but fails to take any measures to avert it raises not only the issue of positive obligations [6] but also the fundamental question of responsibility for cause of the prohibited treatment. Whilst the majority in N. shifted causation beyond the territory of the contracting State party, the logic of that view cannot be sustained. The crucial act that will bring about this applicant’s death is not Nigeria’s omission to include her combination therapy amongst the ARVs available. That omission can have no effect upon her for so long as she is not placed in Nigeria. The crucial act which will determine whether she lives or dies is the execution of the State’s decision to deport. The intentional and proactive removal of the applicant from a place where she can obtain life-saving treatment to a place where she cannot is what will bring about her death. It is this conscious exposure of her to a real and imminent risk of near certain but avoidable suffering and death that engages the State’s responsibility under the Convention. “ Arguing otherwise is akin to saying it is the fault of the hard ground for injury suffered by a person pushed from a cliff rather than the hand that pushed him ” [7] .

That geographical location is irrelevant to causation is demonstrated, clearly, in the non-refoulement obligation under the Convention. Article 3 protects those within a State’s jurisdiction from proscribed treatment regardless of whether such treatment is inflicted directly in the contracting State or somewhere else at a later date [8] . A contracting State’s responsibility is engaged where “ substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subject to treatment contrary to Article 3 in the receiving country ” [9] . The Court has made it clear that this liability is incurred by reason of “ having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment ” (emphasis added) [10] .

This consistent approach has been confirmed recently in Aswat v. the United Kingdom [11] . The applicant, a suspected terrorist, was the subject of an extradition request from the United States. Whilst held in a British hospital, his illness (schizophrenia) was well-controlled and he received the appropriate medication needed for his health and safety. The Court considered that whether or not his extradition would breach Article 3 very much depended upon (i) the conditions in which he would find himself and (ii) the medical services that would be made available to him (§ 52). Accepting that the applicant would have access to mental health services regardless of the institution in which he would be detained, the Court noted that the absence of guarantees that he would not be detained at ADX Florence—a maximum security facility in which long periods of isolation were the norm. It found that there was a real risk that the applicant’s extradition to a potentially more hostile prison environment would result in a significant deterioration in his mental and physical health. This, it concluded, would violate Article 3.

As in Aswat , the applicant in the instant case will certainly be placed in “a more hostile environment” which will have an adverse impact upon her health. Without access to life-saving treatment, she will suffer a rapid and a fatal deterioration in her condition. If Article 3 prohibits, rightly, the expulsion of a suspected terrorist to a third country because the conditions there would have adverse consequences for his health, it defies logic for the same Court to maintain that the same provision does not prohibit the expulsion of a vulnerable mother to a third country where the conditions there will have fatal consequence for her life. The Grand Chamber must resolve such a patent discrepancy in this Court’s jurisprudence [12] .

In N. type cases, the obligation to protect against a real risk of inhuman and degrading treatment is triggered only when an applicant’s illness has reached a terminal stage. A more humane application of the “exceptional circumstances” test is required, as a matter of urgency, to save this applicant’s life. The Court’s judgments must protect not just the dying but also the living against treatment prohibited under Article 3 of the Convention.

[1] XVIII International Aids Conference: Abstract C. Izambert: http://pag.aids2010.org/Abstracts.aspx?SID=432&AID=5953

[2] As to Article 8, my vote was based solely on the fact that if the applicant’s Article 3 rights were vindicated as required under the Convention, then no violation of Article 8 would occur. Consequently, I do not share the majority’s reasoning under Article 8 and, in particular, I do not agree that sufficient regard has been had to the best interests of the children whose family life will, indeed, be ruptured, irreparably, as a direct consequence of the applicant’s foreseeable and avoidable death.

[3] Ibid., § 50

[4] UK Border Agency, Nigeria: Country of Origin Information Report, 6 January 2012. The 2013 Report cited by the majority shows that only 28.8% of people in need of ARV treatment are in receipt of same.

[5] If the facts of this case demonstrate anything it is this: that in the treatment HIV infection—ARV “lines” matter. The applicant was seriously ill and had a number of opportunistic infections when her CD level fell to 126 (see paragraph 28). Her condition improved significantly when her combination therapy was changed. Her CD4 count stabilized and her viral load became undetectable. Currently, her infection is under control and she has not developed any opportunistic diseases (paragraph 124).

[6] States are required to take measures to avert risks of death or ill-treatment where they know, or ought to know, of such risks. If such knowledge or “notice” of risk is established together with failure on the part of the State to take steps to protect the individual therefrom, then the Court will find a violation of Convention. See, for example, Osman v. the United Kingdom , 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, and Oneryildiz v. Turkey [GC], no. 48939/99, ECHR 2004-XII.

[7] Antony Julian, “Exceptional Circumstances: Too Exceptional?”, Kings College London

http://www.kslr.org.uk/blogs/humanrights/2012/05/31/exceptional-circumstances-too-exceptional/

[8] See Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008.

[9] H.L.R. v. France, 29 April 1997, § 34, Reports 1997 ‑ III , and Chahal v. the United Kingdom, 15 November 1996, § 74, Reports 1996 ‑ V.

[10] Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161, and Saadi , cited above, §126.

[11] Aswat v. the United Kingdom, no. 17299/12, 16 April 2013.

[12] I agree with the six Judges in Yoh-Ekale Mwanje v Belgium who (in their separate opinion) called upon the Grand Chamber to revisit this Court’s jurisprudence in N. v. the United Kingdom .