Information Note on the Court’s case-law No. 147
December 2011
Kanagaratnam and Others v. Belgium - 15297/09
Judgment 13.12.2011 [Section II]
Article 3
Degrading treatment
Inhuman treatment
Detention of alien minors accompanied by their mother in a closed centre: violation
Article 5
Article 5-1-f
Prevent unauthorised entry into country
Detention of alien minors accompanied by their mother in a closed centre: violation
Facts – The applicants – a mother and her three children – are Sri Lankan nationals of Tamil origin. In January 2009 the first applicant, accompanied by her children, arrived at the Belgian border having travelled from Congo, and applied, on that same day, for asylum and subsidiary protection at the border. Pursuant to the Belgian law on the entry, residence, settlement and expulsion of aliens, the authorities decided to refuse them entry and return them, on the ground that the mother was in possession of a false passport. The same day, the Aliens Office decided to place the family in a closed transit centre for illegal aliens, 127bis, pending processing of their asylum application. The family subsequently applied to the courts to be released, but without success. In February 2009 the Office of the Commissioner-General for Refugees and Stateless Persons refused the applicants asylum and subsidiary protection on the ground that some of the mother's statements concerning the risk in Sri Lanka lacked credibility. After having been informed of the decision to return them to Congo, the first applicant sought a temporary measure, fearing that she would be subjected to inhuman treatment were she to be returned to Congo and, subsequently, to Sri Lanka. On 20 March 2009 the European Court decided to suspend the family’s return until 20 April 2009, which, after the family’s refusal to board the plane, was extended by one month. The family remained in detention pending their return, in accordance with national legislation. The Aliens Office again decided to refuse the family entry into Belgium and to return them to Congo and the family’s detention in the closed centre was extended. After having again applied for release, the family was finally released following a decision of the Aliens Office taken on 4 May 2009, after a second asylum application had been made on 23 March 2009 and was under consideration. Having regard to the fact that the applicants had been released and that they could not be removed pending the outcome of their asylum application, the temporary measure suspending their removal was lifted on 18 May 2009. In September 2009 the Office of the Commissioner-General for Refugees and Stateless Persons granted the mother and her children refugee status.
Law – Article 3
(a) The three children – The Court had twice found that Belgium had violated Article 3 on account of having detained accompanied alien minors and an unaccompanied alien minor in a closed transit centre. The Court noted that the Government had acknowledged that the detention of minors posed a problem of principle under Article 3 and welcomed the decision taken by the Belgian authorities to no longer detain in closed transit centres, families who were unlawfully resident in Belgium.
The circumstances of the instant case were comparable with those of the case of Muskhadzhiyeva and Others v. Belgium(no. 41442/07, 19 Information Note no. 126). They concerned minor children detained with their mother in the same centre, closed transit centre 127bis, which the Court had held to be inappropriate for the needs of children because of the conditions of detention, as described in various national and international reports. Other reports had been published since the above cited judgment, including the first such report to be published by an official Belgian authority, the Federal Ombudsman, which stressed the particularly disastrous effects on children’s balance and development of placing them in closed transit centres. The best interests of the child as enshrined in Article 3 of the United Nations Convention on the Rights of the Child had to be paramount, including in the context of expulsion. In the instant case, the Court had to proceed on the basis that the children were vulnerable both because they were children and because of their personal history. Undoubtedly, even before their arrival in Belgium they had experienced a traumatic situation. Separated from their father following his arrest, they had, with their mother, left a country racked by civil war and had been anxious about reprisals by the local authorities. That vulnerability had been acknowledged by the Belgian authorities since they had finally granted them refugee status. Then, on their arrival in Belgium, the children had been stopped at the border and immediately placed in a closed transit centre pending their return. Finally, their detention had been particularly lengthy, almost four months. The Belgian authorities had, therefore, exposed the children to feelings of anxiety and inferiority and, in full knowledge of the facts, had risked compromising their development. The situation experienced by the children had amounted to inhuman and degrading treatment.
Conclusion: violation (unanimously).
(b) The first applicant – In the case of Muskhadzhiyeva and Others cited above, the Court had considered that although the mother’s feeling of powerlessness to protect her children from detention and the conditions of that detention might have caused her anxiety and frustration, the constant presence of her children must have somewhat appeased that feeling so that it did not reach the level of severity required to constitute inhuman treatment. In the instant case, the first applicant had remained with her children during the detention. Consequently, while acknowledging that the dilution of her parental role, her reduced power to control her children’s lives and her powerlessness to end her children’s suffering had certainly exposed the first applicant to extreme uncertainty and helplessness, the Court did not have sufficient grounds for departing from the approach adopted in the case referred to above.
Conclusion: no violation (unanimously).
Article 5 § 1 (f): The applicants had been stopped at the border where they had been able to make an asylum application. It was decided to refuse them entry and to return them on the ground that they had been in possession of a false passport. Their detention was therefore covered by the first limb of Article 5 § 1 (f).
(a) The three children – In the judgment in the case of Mubilanzila Mayeke and Kaniki Mitunga v. Belgium (no. 13178/03, 13 October 2006, Information Note no. 90), the Court had found that there had been a violation of Article 5 § 1 (f) in respect of the child applicant, on the ground that the latter had been detained in a closed transit centre designed for adult illegal aliens in the same conditions as an adult, which were therefore unsuitable given her extreme vulnerability as an unaccompanied minor alien. The Belgian legal system in force at that time and applied in the above-cited case had not sufficiently guaranteed the child’s right to liberty. As in the above-cited judgment, the Court considered in the instant case that the fact that the children had been accompanied by their mother was not a reason to depart from that conclusion.
Conclusion: violation (unanimously).
(b) The first applicant – A decision had been made as to the first period of detention upon the first applicant’s arrival in Belgium, pursuant to the law on the entry, residence, settlement and expulsion of aliens, on the ground that she had attempted to enter the country without the required documentation and had made an asylum application. That provision had enabled the Aliens Office to detain the applicant in a closed transit centre for two months. The validity of that decision had expired on 22 March 2009 at midnight. The fact that the Aliens Office had decided to keep the applicant in detention on the day on which the Court had notified the temporary measure on 20 March 2009 did not render her detention unlawful even if the removal procedure had been temporarily suspended. Likewise, the error as to the facts giving rise to the new detention order had not affected the lawfulness of the detention for the purposes of Article 5, which continued to be justified. On 23 March 2009, at the end of the initial period, the Aliens Office made another detention order on the basis of the same legislative provision, also valid for a period of two months, on the ground that the applicant had made a second asylum application. On 25 March 2009 the second asylum application was transferred to the Office of the Commissioner-General for Refugees and Stateless Persons for an examination on the merits. The applicant was finally released on 4 May 2009. Having regard to the foregoing, the placement in and continued detention of the first applicant had been decided “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1 (f).
The Court had no reason to doubt the good faith of the Belgian authorities. Nether did it have any objection, a priori, to considering that the first applicant’s placement in detention, in conjunction with the order to leave the country issued “at the border” on 23 January 2009, fell within the circumstances envisaged by the case-law relating to the first part of Article 5 § 1 (f). However, it queried the lawfulness of the applicant’s continued detention until 4 May 2009 after expiry of the initial period of two months provided by the Aliens Act, while a second asylum application had been lodged, taken into consideration and referred for an examination on the merits. In those circumstances, the continued and particularly lengthy detention of the first applicant in a place manifestly inappropriate for accommodating a family, in conditions which the Court had itself held, with respect to the children, to be in breach of Article 3, had been arbitrary. In view of the foregoing, the continued detention of the first applicant had not been “lawful” within the meaning of Article 5 § 1 (f).
Conclusion: violation (unanimously).
Article 41: 7,650 EUR to the first applicant and 13,000 EUR to each of the children in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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