[Belgium]
Detention of Chechen children unlawful
Jan 19, 2010
Comment: The European Court of Human
Rights published a press release regarding its judgment in the case of
Muskhadyhiyeva and others v. Belgium. The case implies a woman with four children, arriving
in Belgium
from Poland, being refused asylum. The family was held in a closed transit
centre near Brussels airport. The court found the state of Belgium in breach of Article 3
and 5 of the European Convention of Human Rights.
Press
release issued by the Registrar
Chamber
judgment<http://cmiskp.echr.coe.int/tkp197/viewhbkm.asp?sessionId=43285391&skin=hudoc-pr-en&action=html&table=F69A27FD8FB86142BF01C1166DEA398649&key=79440&highlight=41442/07#02000001>1
<http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=861160&portal=hbkm&source=externalbydocnumber&tabl>Muskhadzhiyeva
and others v. Belgium (application no. 41442/07)
DETENTION
OF CHECHEN CHILDREN UNLAWFUL
AND
CONDITIONS OF DETENTION UNACCEPTABLE
Violation
of Articles 3 (prohibition of inhuman or degrading treatment) and
5 1 (right to liberty and security) (second, third, fourth and
fifth applicants)
No
violation of Articles 3 and 5 1 (first applicant)
No
violation of Article 5 4 (all applicants)
of the
European Convention on Human Rights
Principal
facts
The
applicants, Aina Muskhadzhiyeva, born in 1966, and her four children Alik,
Liana, Khadizha and Louisa (respectively aged seven months, three and a half
years, five and seven years at the material time and born in 2006, 2003, 2001
and 2000), are Russian nationals of Chechen origin and live in a refugee camp
in Debak-Podkowa Lesna (Poland).
Having
fled from Grozny in Chechnya they eventually arrived in Belgium on 11 October
2006, where they sought asylum. As they had spent some time in Poland, the
Polish authorities agreed to take charge of them, by virtue of the European
Council Regulation 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 Belgian authorities accordingly, on 21 December 2006, issued a decision
refusing them permission to stay in Belgium and ordering them to leave the
country. The Aliens Office summoned the applicants, who had left their
accommodation centre, in order to serve the decision on them. On 22 December
2006 they were placed in a closed transit centre run by the Aliens Office near
Brussels airport, known as Transit Centre 127 bis, where aliens (single
adults or families) were held pending their removal from the country. Several
independent reports drawn up in recent years have highlighted the unsuitability
of the centre in question for housing children.
A
request to release the applicants was rejected by the Brussels Court of First
Instance on 5 January 2007 and again by the Brussels Court of Appeal on 23
January 2007. Between those two decisions the organisation Mdecins sans
frontires carried out a psychological examination of the applicants and found
that the children in particular – and especially Khadizha – were
showing serious psychological and psychotraumatic symptoms and should be
released to limit the damage. On 24 January 2007 the applicants were sent back
to Poland. On the same day they lodged a cassation appeal. By a decision of 21
March 2007 the Court of Cassation found the appeal devoid of purpose as the
applicants had already been removed from the country. A report drawn up by a
psychologist in Poland on 27 March 2007 confirmed Khadizhas very critical psychological
state and confirmed that the deterioration might have been caused by the
detention in Belgium.
Complaints,
procedure and composition of the Court
Relying
on Article 3, Aina Muskhadzhiyeva and her children complained about the
conditions of their detention in Transit Centre 127 bis for more than a
month. Relying in particular on Article 5 1 and 4, they also complained that
their detention had been unlawful and the remedy against it before the Court of
Cassation ineffective, as they had been removed from the country before the
court had reached a decision. The application was lodged with the European
Court of Human Rights on 18 September 2007.
Judgment
was given by a Chamber of seven judges, composed as follows:
Ireneu
Cabral Barreto (Portugal), President,
Franoise
Tulkens (Belgium),
Vladimiro
Zagrebelsky (Italy),
Danutė Jočienė (Lithuania),
Dragoljub
Popović (Serbia),
Andrs
Saj (Hungary),
Isl
Karakas (Turkey), judges,
and
Sally Doll, Section Registrar.
Decision
of the Court
Alleged
violation of Article 3
Examining
first the fate of the four children, the Court recalled that it had already
found the detention of an unaccompanied minor in Transit Centre 127 bis
contrary to Article 3 and that the extreme vulnerability of a child was
paramount and took precedence over the status as an illegal alien. It was true
that in the present case the four children were not separated from their
mother, but that did not suffice to exempt the authorities from their
obligation to protect the children. They had nevertheless been held for over a
month in a closed centre which was not designed to house children, as confirmed
by several reports cited by the Court. The Court also referred to the concern
expressed by independent doctors about the childrens state of health. It found
that there had been a violation of Article 3 in respect of the four children.
The
Court then went on to examine the mothers case, reiterating that parents
should not always be considered victims of the ill-treatment inflicted on their
children. They might qualify for victim status in some cases, but only where
there were special factors that made the parents suffering different in scale
and nature from the emotional distress inevitable in close relatives of victims
of serious human rights violations. In Aina Muskhadzhiyevas case the Court
found it decisive that she had not been separated from her children. Their
constant presence must have somewhat appeased the distress and frustration of
their detention in the transit centre so that it did not reach the level of
severity required to constitute inhuman treatment. There had therefore been no
violation of Article 3 in respect of the mother.
Alleged
violation of Article 5 1
The
applicants were in a situation where it was in principle possible under the
Convention to place them in detention (the Convention authorises the lawful
arrest and detention of a person to prevent his effecting an unauthorised entry
into the country or of a person against whom action is being taken with a view
to deportation or extradition). That did not mean, however, that their
detention was necessarily lawful.
In so
far as the four children were kept in a closed centre designed for adults and
ill-suited to their extreme vulnerability, even though they were accompanied by
their mother, the Court found that there had been a violation of Article 5 1
in respect of the children.
The
Court saw no reason, on the other hand, to find the mothers detention in
breach of the Convention. She had been lawfully detained with a view to her
expulsion from Belgium. There had therefore been no violation of Article 5 1 in
respect of the mother.
Alleged
violation of Article 5 4
It was
true that the Court of Cassation had delivered its decision concerning the
applicants request for release after they had been sent back to Poland. Prior
to that, however, two courts having de facto and de jure jurisdiction had
examined the request without delay while they were still in Belgium. The Court
pointed out that it was sufficient in principle for an appeal to be examined by
a single court, on condition that the procedure followed had a judicial
character and gave the individual concerned guarantees appropriate to the kind
of deprivation of liberty in question. That being so, none of the applicants
had been the victim of a violation of Article 5 4.
Under
Article 41 (just satisfaction) of the Convention, the Court awarded the
applicants together 17,000 euros in respect of non-pecuniary damage.
***
The
judgment is available only in English. This press release is a document
produced by the Registry. It does not bind the Court. The judgments are
available on its website (<http://www.echr.coe.int/>http://www.echr.coe.int).
Press
contacts
Frdric
Dolt (tel: + 33 (0)3 90 21 53 39) or
Stefano
Piedimonte (tel: + 33 (0)3 90 21 42 04)
Tracey
Turner-Tretz (tel: + 33 (0)3 88 41 35 30)
Kristina
Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70)
Cline
Menu-Lange (tel: + 33 (0)3 90 21 58 77)
Nina
Salomon (tel: + 33 (0)3 90 21 49 79)
The
European Court of Human Rights was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950
European Convention on Human Rights.
1
Under Article 43 of the Convention, within three months from the date of a
Chamber judgment, any party to the case may, in exceptional cases, request that
the case be referred to the 17-member Grand Chamber of the Court. In that
event, a panel of five judges considers whether the case raises a serious
question affecting the interpretation or application of the Convention or its
protocols, or a serious issue of general importance, in which case the Grand
Chamber will deliver a final judgment. If no such question or issue arises, the
panel will reject the request, at which point the judgment becomes final.
Otherwise Chamber judgments become final on the expiry of the three-month
period or earlier if the parties declare that they do not intend to make a
request to refer.