Information Note on the Court’s case-law 187

July 2015

V.M. and Others v. Belgium - 60125/11

Judgment 7.7.2015 [Section II]

Article 3

Degrading treatment

Family of asylum seekers with children, including a baby and a disabled child, left homeless and with no means of subsistence for three weeks: violation

Article 13

Effective remedy

Lack of effective remedy in asylum proceedings: violation

[This case was re ferred to the Grand Chamber on 14 December 2015]

Facts – The applicants are a couple of Roma origin and their five children. Their eldest daughter, who had been mentally and physically disabled from birth, died after the lodging of the application. The fam ily, who came from Serbia, travelled first to Kosovo and then to France, where they lodged an asylum application on discrimination grounds. Their application was rejected in a final decision of June 2010. The family returned to Serbia and then travelled to Belgium, where they lodged a further asylum request in April 2011. Under the European Union’s Dublin II Regulation * , they were served with a decision refusing them leave t o remain together with an order to leave the country for France, the country responsible for examining their asylum application. The Belgian authorities stated in particular that there was no evidence that the applicants had left the territory of the Europ ean Union Member States for more than three months. The validity of the orders to leave the country was subsequently extended by four months because the mother was pregnant and was about to give birth. The applicants appealed against the decision refusing them leave to remain and the orders to leave the country. The proceedings concluded with a finding that Belgium was responsible for the examination of their asylum application by the Aliens Appeals Board. At the same time, the applicants commenced proceedi ngs seeking regularisation of their immigration status on account of their eldest daughter’s medical condition. It was only during the proceedings before the European Court that they learnt of the decision to declare their request inadmissible.

During the asylum proceedings in Belgium the applicants were accommodated in two reception centres. They were expelled from there on 26 September 2011 when the time-limit for enforcement of the orders to leave the country expired. They travelled to Brussels, where vo luntary associations directed them to a public square where other homeless Roma families were staying. They remained there from 27 September to 5 October 2011. The accommodation centres for asylum seekers took the view that they could not take in the appli cants because the appeal against the decision refusing them leave to remain and the order to leave the country did not have suspensive effect. Following the intervention of the Children’s Commissioner for the French-speaking Community, the applicants were taken care of for a few days. After allegedly reporting to a reception centre more than 150 km from Brussels – an assertion contested by the Government – the applicants ended up in a Brussels railway station where they remained, homeless and without any me ans of subsistence, for three weeks until a charity arranged for their return to Serbia in October 2011. After they had returned to Serbia the condition of the eldest girl deteriorated and she died of a pulmonary infection in December 2011.

In the proceedi ngs before the European Court the applicants complained in particular of the failure, during the period between their eviction from the accommodation centre on 26 September 2011 and their departure for Serbia on 25 October 2011, to provide them with recept ion facilities to meet their essential needs.

Law – Article 3 ( substantive aspect ): Under section 6 of the “Reception” Act, material assistance had to be provided to asylum seekers throughout the asylum proceedings, and was discontinued when the time-limit for enforcement of the order to leave the country expired. At the relevant time, against the background of the “reception crisis”, reception centres had been interpreting that provision restrictively in the case of asylum seekers who, like the applicants, were covered by the Dublin procedure. Material assistance to the persons concern ed was withdrawn immediately on expiry of the time-limit for execution of the order to leave the country which accompanied the decision refusing to examine their application on the ground that another State had responsibility; this was the case even if an appeal was pending against that decision. Nevertheless, under Belgian law, all forms of material and medical assistance could continue to be provided in exceptional circumstances. At the relevant time, however, the reception network for asylum seekers had reached saturation point and reception centres were implementing a policy of excluding families with children who were in the same situation as the applicants, that is to say, who were unlawfully resident following the issuing of an order to leave the coun try and pending a final decision on their asylum application. Most of the families concerned found themselves homeless and without any form of assistance.

As to whether the applicants had actually reported to the accommodation centre to which they had been directed following the intervention of the Children’s Commissioner, the Court was not in a position to verify what had really happened. However, in the circumstances it was not difficult to imagine that the applicants, who were not familiar with the corre ct procedure, might have felt overwhelmed by the situation and not have displayed all possible diligence in order to take advantage of an accommodation option located over 150 km from Brussels. If so, that should not count to their disadvantage. On the con trary, it had been for the Belgian authorities to display greater diligence in trying to find accommodation for them.

The situation experienced by the applicants had been particularly serious. This finding was echoed by the findings of the European Committee of Social Rights , which had concluded that situations of this type were in breach of children’s right to protection under Article 17 § 1 of the 1 996 Revised European Social Charter .

Furthermore, the situation in which the applicants found themselves could have been avoided or at least made shorter if the application to set asid e and the request to stay execution of the decisions refusing them leave to remain and ordering them to leave the country had been processed more quickly. The Aliens Appeals Board had not given a decision until more than two months after the applicants had been expelled from the reception facility and more than one month after they had left Belgium.

Consequently, the situation experienced by the applicants gave rise to the same conclusion as in the case of M.S.S. v. Belgium and Greece ([GC], 30696/09, 21 Ja nuary 2011, Information Note 137 ). The Belgian authorities had not given due consideration to the applicants’ vulnerability as asylum seekers and to the vulnerability of their children. Notwithstandin g the fact that the crisis had been an exceptional situation, the Belgian authorities had to be regarded as having failed in their obligation not to expose the applicants to conditions of extreme poverty for four weeks, leaving them living on the street, w ithout funds, with no access to sanitary facilities and no means of meeting their basic needs. Thus, the applicants had been the victims of treatment showing a lack of respect for their dignity, a situation that had without doubt aroused in them feelings o f fear, anguish or inferiority capable of inducing desperation. Those living conditions, combined with the lack of any prospect of an improvement in their situation, had attained the level of severity required under Article 3 of the Convention and amounted to degrading treatment.

Conclusion : violation (five votes to two).

Article 13 taken in conjunction with Article 3: As they had not been detained with a view to their repatriation, the applicants were not entitled to a stay of execution of their removal un der the extremely urgent procedure pending the Aliens Appeals Board’s examination of the merits of their application to set aside. Hence, at the same time as the application to set aside, they had lodged a request under the ordinary procedure for a stay of execution of the order to leave the country. They complained of the fact that, since the request in question had not stayed execution of the order to leave the country, the reception centre had on 26 September 2011 discontinued the material assistance the y had hitherto received. They had therefore been obliged to leave Belgium and return to the country they had fled without the authorities from whom they had requested protection having examined whether their fears in that country were well founded.

Appeals to the Aliens Appeals Board to have an order to leave the country set aside did not stay execution of the expulsion measure. However, the Aliens Act provided for specific procedures for requesting a stay of execution: an extremely urgent procedure and an “ordinary” procedure. A request lodged under the extremely urgent procedure automatically suspended the expulsion measure. Under Belgian law as applicable at the material time, the Aliens Appeals Board, on the basis of a review of the seriousness of the gr ounds alleging a violation of the Convention, could order a stay of execution of the impugned decisions within a period of 72 hours, thereby preventing the expulsion of the persons concerned from the country until such time as their arguments were subjecte d to detailed scrutiny in the context of the application to set aside. Automatic suspension could also be obtained by means of another combination of remedies involving, first, an application to set aside and a request for a stay of execution under the ord inary procedure, submitted within the time-limit of 30 days from notification of the impugned decision, followed by a request for interim measures as a matter of extreme urgency, lodged when a coercive measure was imposed. The Aliens Appeals Board then had a statutory duty to examine, simultaneously and within 72 hours, the request for interim measures as a matter of extreme urgency and the previous request for a stay of execution under the ordinary procedure. The lodging of a request for interim measures a s a matter of extreme urgency automatically suspended the expulsion measure. However, according to the Aliens Appeals Board’s interpretation of the concept of extreme urgency, both the request for a stay of execution under the extremely urgent procedure an d the request for interim measures as a matter of extreme urgency required the existence of a coercive measure – normally, the detention of the persons concerned – in order to be declared admissible and well founded.

This system obliged foreign nationals w ho faced expulsion, and who maintained that a stay of execution of the expulsion measure was an urgent matter, to lodge a precautionary application, in this instance a request for a stay of execution under the ordinary procedure. That application, which di d not have suspensive effect, had to be lodged for the sole purpose of retaining the right to take action when the matter actually attained extreme urgency as defined by the case-law of the Aliens Appeals Board, that is, when a coercive measure was applied against the persons concerned. This system was open to a number of criticisms.

Firstly, it could not be ruled out that, in a system where a stay of execution was granted only on application and on a case-by-case basis, it might be incorrectly refused, esp ecially if the judicial body ruling on the merits set aside the removal order subsequently for failure to comply with the Convention, for instance because it considered after closer examination that the person concerned was in fact at risk of ill-treatment in the receiving country. In such cases the extremely urgent remedy exercised by the person concerned would not be sufficiently effective for the purposes of Article 13. The requirements of Article 13 took the form of a guarantee and not a mere statement of intent or a practical arrangement.

Secondly, while the arrangements under Belgian law might be effective in theory, in practice they were liable to prove very complex and difficult to implement. In the present case the fact that the request for a stay o f execution under the ordinary procedure lacked suspensive effect had resulted in the material assistance provided to the applicants being discontinued and had “forced” them to return to the country they had fled without either the Belgian or the French au thorities having examined whether their fears were well founded. The applicants had contested the claim that France had responsibility, and a few months later the Aliens Appeals Board had in fact found in their favour on that point. Accordingly, the Belgia n system had not afforded the requisite guarantees under Article 13 taken in conjunction with Article 3 with regard to the availability and accessibility of the remedies both in law and in practice.

Thirdly, the system obliged the persons concerned, who we re already in a vulnerable position, to take further action in extremis at the time of enforcement of the measure. This situation was of particular concern in the case of families accompanied by minor children, bearing in mind that enforcement of the measu re in the form of placement in detention, if it could not be avoided, had to be kept to a strict minimum in accordance with the Court’s case-law in particular.

Fourthly, the delays in the proceedings in issue could not be disregarded. The application to se t aside the order to leave the country had been lodged on 16 June 2011, but the Aliens Appeals Board had not given its judgment – in the applicants’ favour – until 29 November 2011. By that time the applicants had returned to the country they had fled, wit hout the Belgian or the French authorities having examined whether their fears, as expressed in the Belgian asylum proceedings, were well founded. That situation had deprived them in practice of the opportunity to continue the proceedings in Belgium and in France. In view of the nature of the arguments raised before the Aliens Appeals Board and the serious consequences of the decision complained of before that body for the applicants’ legal and material situation, the application to set aside had also been an inadequate remedy on account of the length of the proceedings.

Lastly, the applicants had attempted another remedy in a bid to prevent their expulsion, in the form of a request to regularise their residence status on medical grounds. However, it was onl y later, in the course of the proceedings before the Court, that they had learnt of the decision taken. Hence, they had had no effective remedy by which to appeal against that decision either.

Consequently, the applicants had not had an effective remedy in the sense of an appeal having automatic suspensive effect and enabling their allegations of a violation of Article 3 of the Convention to be examined in a rapid and effective manner.

Conclusion : violation (four votes to three).

The Court further held, una nimously, that there had been no violation of Article 2 of the Convention as the applicants had not demonstrated beyond reasonable doubt that the death of their eldest daughter had been caused by their living conditions in Belgium and that the Belgian auth orities had breached any positive obligation in that regard.

Article 41: EUR 22,275 jointly in respect of non-pecuniary damage.

(See also Tarakhel v. Switzerland [GC], 29217/12, 4 November 2014, Inf ormation Note 179 ; and the Factsheet on “Dublin” cases )

* Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member Stat e responsible for examining an asylum application lodged in one of the Member States by a third-country national.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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