(July 16, 2015) On July 7, 2015, the European Court of Human Rights (ECHR) rendered a Chamber judgment in the case of V.M. and Others v. Belgium, in which the majority held that Belgium had violated article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights and article 13 (right to an effective remedy), taken in conjunction with article 3. The Court found, however, that there had been no violation of article 2 (right to life). Belgium was ordered to pay the applicants €22,750 (about US$25,049) in nonpecuniary damage and €8,120 (about US$8,941) in costs and expenses. (V.M. and Others v. Belgium, (Application No. 60125/11) (July 7, 2015), HUDOC (in French); Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocols No. 11 and No. 14 [with hyperlinks to Protocols No. 15 & 16] (Nov. 4, 1950), Council of Europe website.)
The applicants are a family of six Serbian nationals of Roma origin: a father, a mother, and their four children. The eldest daughter, who was also an applicant, died in Serbia on December 18, 2011, after the application was lodged. She was mentally and physically disabled from birth and suffered from epilepsy. The family decided to leave Serbia because of the ill-treatment and discrimination they had endured there as Roma. In March 2010, they traveled to France, where they submitted an asylum application, which was rejected. The family later moved to Belgium in March 2011, where they filed another asylum application. (V.M. and Others v. Belgium, §§ 6-11.)
The “Dublin Procedure”
In May 2011, at the request of Belgium under the Dublin II Regulation establishing the criteria and mechanisms for determining the European Union Member State responsible for examining an asylum application lodged in one of the Member States by a national of a third country, France agreed to take back the family. At the time of the events, this “Dublin procedure” was governed by Council Regulation (EC) No 343/2003. (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, 2003 O.J. (L 50/1), EUROPA.)
The applicants were therefore ordered by the Belgian Aliens Office to leave for France. They were then granted an extension to remain in Belgium until September 25, 2011, due to the mother’s pregnancy. (V.M. and Others v. Belgium, §§ 12-21.)
Proceedings Before the Aliens Office and the Aliens Appeals Board
On June 16, 2011, the applicants submitted an appeal demanding the suspension and setting-aside of the decisions refusing them permission to remain and ordering them to leave Belgium. The hearing before the Aliens Appeals Board was held on August 26, 2011. At the same time, they unsuccessfully tried several times to suspend their transfer to France through administrative and judiciary procedures. For instance, the family applied to the Aliens Office on September 22, 2011, for permission to remain in Belgium for medical reasons, under article 9ter of the Aliens Act, on behalf of the eldest daughter, but the application was rejected. (V.M. and Others v. Belgium, §§ 22-26.)
In its judgment rendered on November 2011, the Aliens Appeals Board concluded that the Aliens Office had not established the legal basis on which France was designated responsible for the applicants’ asylum application and consequently ruled in favor of setting aside the contested decisions. (V.M. and Others v. Belgium, § 27-30.) In the meantime, the family was left in a condition of extreme poverty and was forced to return to Serbia, where the eldest daughter died. (Press Release, European Court of Human Rights, The Conditions of Extreme Poverty Faced by a Family of Asylum Seekers Following Their Eviction from an Accommodation Centre Constituted Degrading Treatment (July 7, 2015), HUDOC.)
The Belgian State nevertheless lodged an administrative appeal (recours en cassation) with the Belgian Conseil d’État, the highest administrative jurisdiction in Belgium, against the decision of the Aliens Appeals Board. On February 28, 2013, the recourse was declared inadmissible “for lack of current interest, given that the applicants had returned to Serbia and that the Belgian State had been released from its obligations under the procedure for determining the Member State responsible for their asylum application.” (Id.; V.M. and Others v. Belgium§§ 31-32.)
The ECHR Decision
In the recent Chamber judgment rendered by the ECHR,
[t]he Court found in particular that the Belgian authorities had not given due consideration to the vulnerability of the applicants, who had remained for four weeks in conditions of extreme poverty, and that they had failed in their obligation not to expose the applicants to degrading treatment, notwithstanding the fact that the reception network for asylum seekers in Belgium had been severely overstretched at the time (the “reception crisis” of 2008 to 2013). The Court considered that the requirement of special protection of asylum seekers had been even more important in view of the presence of small children, including an infant, and of a disabled child.
Furthermore, the fact that the appeal against the order for the applicants’ deportation did not have suspensive effect had resulted in all material support for the applicants being withdrawn and had forced them to return to their country of origin without their fears of a possible violation of Article 3 in that country having been examined. (The Conditions of Extreme Poverty Faced by a Family of Asylum Seekers Following Their Eviction from an Accommodation Centre Constituted Degrading Treatment, supra. )
Pursuant to articles 43 and 44 of the European Convention on Human Rights, however, all parties have three months following the delivery of the decision to request the referral of the case to the Grand Chamber of the Court. If the referral request is made, a panel of five judges will decide if the case deserves further examination. If they decide in the affirmative, the Grand Chamber will hear the case and issue a final judgment. Conversely, if the request is denied, the Chamber judgment stands as final as of the day of the denial. (Id.)
Prepared by Geneviève Claveau, Law Library Intern, under the supervision of Nicolas Boring, Foreign Law Specialist.