European Court of Human Rights
7 July 2015
European Convention on Human Rights, Article 2: right to life
European Convention on Human Rights, Article 3: prohibition of torture, inhuman or degrading treatment or punishment
European Convention on Human Rights, Article 13: right to an effective remedy
European Social Charter European Social Charter (revised), Article 17: right of the child to protection
Council Regulation (EC) No 343/2003 of 18 February 2003 (“Dublin II Regulation”)Council Directive 2003/8/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers in Member States (“Reception Directive”)
The complaint was brought by a Roma family from Serbia composed of two parents and five children below the age of 10 years old, among whom the oldest daughter was disabled and suffered from epilepsy. The family submitted an application for asylum in Belgium in 2011, after having their asylum application rejected in France. The Belgian State asked France to take the family back and France accepted. Belgium therefore withdrew the family’s asylum application and issued them an order to leave the country and return to France.
The family turned to the Belgian Aliens Litigation Council (“Conseil du contentieux des étrangers”) seeking the annulment and suspension of the refusal of the right of residence and the order to leave the country on the basis that the reception conditions in France were unsuitable and in violation of the European Convention on Human Rights (ECHR). The Belgian State discontinued all financial aid to the family before the appeal to the Aliens Litigation Council was decided. As a result, the family was forced to live in care centres and on the streets for a total of one month before they accepted aid from an NGO to return to Serbia. A few months later, the disabled daughter died in Serbia.
The complaint to the European Court on Human Rights alleged that Belgium was in breach of the right to freedom from inhuman and degrading treatment in Article 3, the right to an effective remedy in Article 13, and the right to life in Article 2 of the ECHR.
Issue and resolution:
Inhuman and degrading treatment. Effective remedy. Whether the discontinuing financial aid to a family of asylum seekers before the asylum process is completed amounts to a human rights violation. The Court ruled that the treatment of the family by the Belgian government was degrading and violated Article 3 ECHR alone and in conjunction with Article 13, but it decided there was no violation of Article 2.
The Court considered the status of Roma as a particularly discriminated group of people and found that the family had been put in a particularly vulnerable position especially given the fact that the children were very young and suffered from a disability. Referring to its previous decision in M.S.S. v. Belgium and Greece (App. no 30696/09) and Tarakhel v. Switzerland (App. no 29217/12), the Court decided that the Belgian authorities had not sufficiently taken into consideration the vulnerability of the family, especially that of the children. The treatment afforded to the applicants demonstrated a lack of respect for their dignity which reached the level of severity required under Article 3 ECHR. Therefore, the State was held in breach of the prohibition of inhuman and degrading treatment.
The Court noted that the family’s asylum appeal to the Aliens Litigation Council should have suspended the order to leave the country and that the family should have been able to continue benefiting from financial aid until the appeal is decided. Although other forms of appeal had such a suspensory effect, they were complicated and inadequate given the urgency of the family’s situation. Moreover, the Council was not quick enough in issuing its ruling. As a result, it was decided that the family had not benefited from an effective remedy for the violation of the Convention they invoked. Therefore, the States was in breach of the right to an effective remedy under Article 13 ECHR.
Finally, the Court unanimously refused to impute the death of the child to Belgium, holding that it had not been proven, on the one hand, that the actions of Belgium were the source of the child’s death, and on the other hand, that Belgium had a positive obligation to protect the right to life and failed to comply with it. Therefore, there was no breach of Article 2.
Link to full judgement:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.