By Salvo Nicolosi

Last 7 July 2015, the Second Section of the Strasbourg Court ruled in V.M. and Others v. Belgium, concerning the violation of Articles 3 and 13 ECHR owing to the reception conditions of asylum seekers. The case must be placed within the settled case law on the protection of asylum seekers under Article 3 ECHR which the Court has developed over the years and thus it offers another occasion to reflect on the timely and controversial debate regarding the interpretation of the right to asylum through the lens of the Strasbourg Court (Bossuyt, 2010; Mole/Meredith, 2010).

The facts in the case at issue

The case of V.M. and Others v. Belgium concerned the removal from Belgium to France of a family of Roma origin, including five children, the youngest of which was born in 2011. They lived for most of their lives in Serbia and in 2010 moved to France where they applied for asylum, complaining about discrimination and ill-treatment suffered in Serbia owing to their ethnic origin.

Their application was, however, rejected in France and in 2010 the applicants moved back to Serbia before travelling to Belgium in 2011 to lodge a second asylum application. Pursuant to Dublin II Regulation 343/2003 (now replaced by Dublin III Regulation 604/2013), the Belgian authorities submitted a request to the French authorities to take back the family, as France had to be considered the State responsible for the applicants’ asylum application.

After appealing unsuccessfully the decision refusing the permit to stay and the order to leave issued by the Belgian authorities, the applicants were expelled from the reception centre where they had been staying, as they were no longer eligible for the material support provided to refugees. Consequently they stayed in a public square and remained for three weeks in Brussels North Railway Station in very miserable conditions before their return to Serbia was arranged by a local charity under the Belgian federal return programme.

In 2011 a submission was filed before the Strasbourg Court by the applicants, complaining that their exclusion from the reception facilities in Belgium had exposed them to inhuman and degrading treatment which is contrary to Article 3 ECHR. They also alleged an infringement of Article 2 ECHR on the right to life, arguing that the conditions they had been exposed in Belgium had caused the death of their eldest daughter, who was mentally and physically disabled from birth. Lastly, under Article 13 ECHR, they complained that they had been unable to assert before the courts their claim that their removal to Serbia and the refusal to regularise their residence status had exposed them to a risk to their eldest daughter’s life (Article 2) and to a risk of suffering inhuman and degrading treatment (Article 3).

The reasoning of the Court

In addressing the applicants’ complaints, especially as regards the alleged violation of Article 3 ECHR, the Strasbourg judges firstly reiterated that a right to asylum has never been enshrined in the ECHR and that Contracting States have the right to retain their own sovereignty to control the entry, residence and expulsion of aliens. Next, the Court assessed whether a violation of Article 3 and the consequent State’s responsibility could stem from the reception conditions of asylum seekers. In this context, the Court recalled two crucial judgments namely the recent Tarakhel v. Switzerland and M.S.S. v. Belgium and Greece.

As emphasized by the Court in V.M. (para. 136), in M.S.S. the Court established ‘une nouvelle jurisprudence’, stressing that special attention must be paid to asylum seekers’ situation in order to assess whether the threshold of severity required by Article 3 ECHR is reached, taking also into account that asylum seekers represent ‘a particularly underprivileged and vulnerable population group in need of special protection.’ Building on this background, the Court also recalled the recent judgment in Tarakhel v. Switzerland to underscore that asylum seekers’ vulnerability is amplified in the case of families with children, thus the requirement of special protection is even more important due to the presence of small children, including, in the case at issue, even a disabled child who died.

Taking into account the reasoning elaborated in the settled case law, the Court ruled in V.M. that the applicants’ living conditions in Belgium in the period between their expulsion from the reception centre and return to Serbia (26 September and 25 October 2011) engaged the responsibility of the Belgian State under Article 3. In particular, the Court held that the Belgian authorities did not pay due consideration to the vulnerability of the applicants and that this situation could have been avoided by speeding up the proceedings brought for the suspension of the decisions concerning the refusing of staying and order to leave. From this perspective, the Court even found a violation of Article 13 in terms of lack of effective remedy in the applicants’ asylum and removal proceedings.

On the other hand, the Court could not find a violation of Article 2 as to the death of the seriously disabled child, as the applicants could not adequately prove that this was the consequence of the living conditions in Belgium or Belgian authorities’ failure to protect the life of the disabled child.

Comments on another piece of asylum case law

Although reloading the mainstream asylum reasoning developed by the Court over the years, the present judgment can be considered one of those ‘new generation asylum cases’ that the Strasbourg Court started to issue following the pivotal ruling in M.S.S. v. Belgium and Greece.

The case confirms that Article 3 ECHR represents the cornerstone to guarantee, albeit indirectly, the missing right to asylum. This was confirmed in Salah Sheek v. The Netherlands, where the Court ruled that, although the right to asylum is not included in the Convention, in case of expulsion or extradition, States must consider the relevance of Article 3, ‘which enshrines one of the fundamental values of democratic societies’ (para. 135).

The Court started applying the aforementioned provision in a series of milestone cases concerning asylum seekers. In particular, in Vilvarajah and Others v. UK and later in Chahal v. UK, the Court convincingly developed the argument that ‘expulsion by the Contracting State of an asylum seeker may give rise to an issue under Article 3, and hence engage the responsibility of that state under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned’ (paras 105-106).

Nonetheless, the case places itself among the most recent case law elaborated in the aftermath of M.S.S. within the framework of the Dublin system to determine the State responsible of an asylum application in Europe (Lübbe, 2015). From this point of view, the importance of the reception conditions has to be stressed as a factor to be taken into account in order to assess the State’s responsibility for a breach of Article 3. This factor proves to be controversial in the case at issue, as highlighted by the dissenting opinion of Judge Kjølbro.

Some considerations are thus necessary to help answer the recurrent question whether a right to de facto asylum may be accepted under the ECHR.

First of all, it is relevant to underscore that in the instant case the Court found a breach of Article 3 owing to the reception conditions of the removing State, namely Belgium. Accordingly, the case is different from other typical Dublin cases, like M.S.S. or Tarakhel, in which the reasoning of the Court was based upon the material conditions of the receiving State.

Furthermore and most importantly, in the case under discussion, the Court acknowledged the crisis experienced between 2008 and 2013 in the Belgian asylum system (paras. 92-96). Nonetheless, in contrast to M.S.S., it was not because of the systematic failures in the reception conditions that Belgium was considered responsible of a violation of Article 3, but owing to the length of the proceedings concerning the applications for the suspension of the decisions concerning the refusing of staying and order to leave, which eventually exposed the applicants to miserable living conditions. In this context, the case offers a typical example of the inherent nexus between Article 3 and Article 13 in asylum cases. As emphasised in Gebremedhin v. France and in Jabari v. Turkey, the latter indirectly provides that, in order to be effective, a remedy should have suspensive effects, at least when facing exposure to torture or ill-treatment, on the one hand, and the right to have access to asylum procedures, on the other hand.

To conclude, this particular judgment is expected to raise mixed feelings. Admittedly, one may expect the same criticism raised by Judge Kjølbro as to the possibility for the judgment to be interpreted as ‘imposing an obligation on EU Member States not only to assess whether an asylum seeker may be returned to another EU Member State as the first asylum country, but also to assess and address the alleged risk of ill-treatment in the country of origin, even when there is no basis for criticising the proper functioning of the asylum procedure or the conditions of reception for asylum seekers in the EU Member State which is the first asylum country.’ Nevertheless, and taking into account the special vulnerability of asylum seekers, acknowledged by the Court, this judgment may contribute to foster the interpretation of the right to asylum conceived, on the one hand and under Article 3, as the right not to be exposed to torture or ill-treatment, and, on the other hand and under Article 13, as the right to have access to effective asylum procedures (Nicolosi, 2012). Indeed, in asylum cases, the latter provision has the great potential to complement and strengthen the protection under Article 3. As posited, in fact, by Einarsen, the provision offers a temporary basis for de facto asylum in two steps: ‘the first step endures from the moment at which a claim is raised under article 3…, until it has been decided whether a prima facie case exists… [t]he second step endures until the claim has been turned down on the merits, by the appropriate national authority in accordance with article 13’ (Einarsen, 1990).