A Belgian eviction order, left a Roma family without basic means of subsistence and forced its return to Serbia, where a severely disabled child died.
A majority of human rights judges agreed today that in the case of V.M. and Others v. Belgium (application no. 60125/11), that there had been:
a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights and of Article 13 (right to an effective remedy) taken in conjunction with Article 3, and no violation of Article 2 (right to life).
As just satisfaction (Article 41), the court held that Belgium was to pay the applicants 22,750 euros (EUR) in respect of nonpecuniary damage and EUR 8,120 in respect of costs and expenses.
The applicants are seven Serbian nationals, a father and mother and their five children. They were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was born in 2001 and was mentally and physically disabled from birth, died in December 2011.
The applicants are of Roma origin and were born in Serbia, where they have lived for most of their lives.
In March 2010, the applicants travelled to France, where they submitted an asylum application which was rejected. In March 2011 they travelled to Belgium and lodged an asylum application there.
On 12 April 2011, the Belgian authorities submitted a request to the French authorities to take back the family.
On 6 May 2011, France accepted the request under the Dublin II Regulation2.
On 17 May 2011, the Aliens Office in Belgium issued the applicants with an order to leave Belgian territory for France, on the ground that Belgium was not responsible for considering the asylum application under the Dublin II Regulation.
On 25 May 2011, the time-limit for enforcement of the order to leave the territory was extended until 25 September 2011 owing to the mother’s pregnancy and imminent confinement.
On 16 June 2011, the applicants submitted to the Aliens Appeals Board a request for the suspension and setting-aside of the decision refusing them leave to remain and ordering them to leave the
On 22 September 2011, the applicants applied for leave to remain on medical grounds on behalf of their disabled eldest daughter. The Aliens Office rejected their application. On 26 September 2011, on expiry of the time-limit for enforcement of the order to leave the country, the applicants were expelled from the Sint-Truiden reception centre where they had been staying, as they were no longer eligible for the material support provided to refugees.
They travelled to Brussels, where voluntary associations directed them to a public square in the Schaerbeek municipality in the centre of the Brussels-Capital district, together with other homeless Roma families. They remained there until 5 October 2011.
On 7 October 2011, they were assigned to a new reception facility as a mandatory place of registration in the Province of Luxembourg, 160 km from Brussels. The applicants eventually took up residence in Brussels North railway station, where they remained for three weeks until their return to Serbia was arranged on 25 October 2011 by a charity under the return programme run by Fedasil, the federal agency for the reception of asylum seekers.
In a judgment of 29 November 2011, the Aliens Appeals Board set aside the impugned decisions (the refusal of leave to remain and the order to leave the country) on the grounds that the Aliens Office had not established on what legal basis it considered France to be the State responsible for the applicants’ asylum application.
The Belgian state lodged an appeal on points of law with the Conseil d’État against the judgment of the Aliens Appeals Board. In a judgment of 28 February 2013, the Conseil d’État declared the appeal 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.
The 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.