Date of the decision: 7 July 2015 / 17 November 2016
Jurisdiction: Council of Europe – European Court of Human Rights
Subject: Violation of Article 3 of the Convention relating to the prohibition of inhuman or degrading treatment
A Serbian family of asylum seekers, subject to an order to leave Belgium, were deprived of basic subsistence and forced to return to their country of origin where their seriously disabled child died shortly after their return. The family complained that exclusion from Belgian accommoda- tion services had left them exposed to inhuman and degrading treatment; and that reception conditions in Belgium had led to the death of their eldest daughter.
The Court carried out a review on whether a violation of Article 3 of the Convention relating to the prohibition of inhuman or degrading treatment had occurred. In determining whether the threshold of severity justifying the application of Article 3 had been attained, the Court had to consider the status of asylum seeker of a person belonging to a particularly disadvantaged and vulnerable group in need of special protection. The Court considered that this vulnerability was compounded by the presence of young children, including a baby and a disabled child.
The Court considered the family's living conditions between their expulsion from the reception centre and their departure for Serbia. The family, having spent nine days in a public square in Belgium, followed by two nights in a transit centre, slept for three weeks in a Brussels railway station.
Accordingly, the Court found that the Belgian authorities had not sufficiently taken into account the vulnerability of the applicants and that the Belgian State had failed to comply with its obligation not to expose them to conditions of extreme deprivation, by leaving them living in the streets, destitute, without access to sanitation facilities, and with no means of meeting their basic needs. The Court took the view that the family's living conditions combined with an absence of any prospect of securing an improvement in their situation attained the threshold of severity required under Article 3, and therefore found a violation of the prohibition on inhuman or degrading treatment.
The case was however referred to the Grand Chamber and, one year later, the Court, in a decision dated 17 November 2016, observed that the applicants had not maintained contact with their lawyer and had failed to keep her informed of their place of residence or provide her with another means of contacting them. The Court considered that the circumstances permitted it to find that the applicants had lost interest in the proceedings and no longer intended to pursue the application. According to the Court, ‘[...] nor is there anything to suggest that the precarious conditions in which the applicants lived in Serbia were such as to prevent them from maintai- ning some form of contact with their lawyer, if necessary through a third party, for such a long period [...]’. It is nevertheless worth noting the dissenting opinion of Judge Ranzoni, also espoused by Judges López Guerra, Sicilianos, and Lemmens. In their opinion, ‘the Grand Chamber should have continued the examination of the application under Article 37 § 1 to finality as in this case, there are special circumstances relating to respect for the human rights as defined the Convention and its Protocols which exceed the particular situation of the applicants’.
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