Muskhadzhiyeva and Others v. Belgium

Information Note on the Court’s case-law No. 126

January 2010

Muskhadzhiyeva and Others v. Belgium - 41442/07

Judgment 19.1.2010 [Section II]

Article 3

Degrading treatment

Inhuman treatment

Positive obligations

Administrative detention of infant asylum-seekers: violation

Facts – The applicants are a mother and her four children. Having fled Grozny in Chechnya, the applicants arrived in Belgium in October 2006 and lived temporarily in a special welfare home in Brussels. They applied for asylum in Belgium. The Polish authorities agreed to take charge of them, by virtue of the Dublin Regulation*. The Belgian authorities issued a decision refusing the applicants permission to stay in Belgium and ordering them to be held in a particular place with a view to their being handed over to the Polish authorities. The applicants were placed in closed transit centre 127 bis. They made an application to a court of first instance for release, but the court ruled that their detention was lawful. The applicants appealed, but the court of appeal upheld the order. In January 2007 the applicants were put on board a plane to Warsaw. An appeal to the Court of Cassation was held to have become devoid of purpose as the applicants had already been removed from the country.

Law – Article 3: a) The children – Although the children had not been separated from their mother, that alone was not sufficient to exempt the Belgian authorities from their obligation to protect the children and take the necessary measures in keeping with their positive obligations under Article 3. The children had been respectively aged seven months, three and a half years, five and seven years at the material time. At least two of them had been old enough to realise what sort of surroundings they were in. They had all been held for over a month in closed transit centre 127 bis, a facility ill-equipped to receive children. In addition, independent doctors had found the children’s state of health to be a cause for concern. The doctors had carried out a psychological examination of the applicants and found that the children in particular were showing serious psychological and psychosomatic symptoms and that their mental state was deteriorating. The Court referred to the United Nations Convention of 20 November 1989 on the Rights of the Child, and in particular Article 22, which calls on the States Parties to take appropriate measures to ensure that a child who is seeking refugee status, whether unaccompanied or accompanied by his or her parents, receives appropriate protection and humanitarian assistance. In view of the young age of the children, the duration of their detention and their state of health as attested by medical certificates during their detention, the Court found that the conditions in which the children had been held in transit centre 127 bis had attained the minimum level of severity required to constitute a violation of Article 3.

Conclusion: violation (unanimously).

b) The first applicant (the mother) – The mother had not been separated from her children. Their constant presence must have somewhat appeased the distress and frustration she must have felt at being unable to protect them against the conditions of their detention, so that it did not reach the level of severity required to constitute inhuman treatment.

Conclusion: no violation (unanimously).

Article 5 § 1: The Court referred to its observations in the judgment of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (no. 13178/03, 12 October 2006, Information Note no. 90) and saw no reason to reach a different conclusion concerning the four child applicants in the present case, even though they were accompanied by their mother. As to the mother, she had been held with a view to her expulsion from Belgium. Article 5 § 1 f) does not require the detention of a person against whom expulsion proceedings are in progress to be considered reasonably necessary.

Conclusion:violation in respect of the four child applicants (unanimously); no violation in respect of the mother (unanimously).

Article 5 § 4: The court of first instance had dismissed the applicants’ appeal and that decision had been upheld on appeal. The Court of Cassation had found the applicants’ subsequent appeal devoid of purpose as the applicants had in the meantime been removed to Poland. The applicants had thus complained about their detention to a court which had issued a decision only six days later. They had been able to appeal against the first-instance decision while they were still in Belgium. Since an appeal to the Court of Cassation was an extraordinary appeal, it could not, in any event, have operated to suspend the expulsion procedure.

Conclusion: no violation in respect of all the applicants (unanimously).

Article 41: EUR 17,000 jointly to the four child applicants in respect of non-pecuniary damage.

* European Council Regulation 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.

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

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