Belgium - Council for Alien Litigation, 17 February 2011, No. 56203

Country of Decision:
Country of Applicant:
Date of Decision:
17-02-2011
Citation:
Judgment № 56203 of 17 February 2011
Court Name:
Council for Alien Law Litigation (General Assembly of 12 judges)
National / Other Legislative Provisions:
Belgium - Procedureregelment van de Raad voor Vreemdelingenbetwistingen (Rules of Procedure for the CALL)
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 39/82
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Art 39/83
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Headnote: 

With this judgment, the General Assembly of CALL is trying to bring its case law in line with the M.S.S. judgment of the ECtHR.

The CALL set the conditions under which an appeal for suspension against an enforceable decision (an order to leave the territory) has automatic suspensive effect.

After a prima facie examination (in extreme urgency), the CALL decided that the applicant in this casehas a reasonable ground of appeal on the basis of Article 3 of the ECHR, as he gave sufficient indications of the concrete problems he was experiencing in Poland. The CALL derived from this a duty of investigation on the part of the Aliens Office. This was sufficient for the CALL, furthermore, to provisionally suspend enforcement of an agreement with Poland to take back the applicant, pending the processing of an appeal for revocation.

Facts: 

The applicant is a Chechen who is applying for asylum in Belgium. A fingerprint check shows that he previously submitted an asylum application in Poland. During the 'Dublin interview' with the Aliens Office, he said he was beaten in Poland. In application of the Dublin II Regulation, the Aliens Office sent a request to Poland to take him back, which was accepted. Then, a decision was served on the applicant refusing right to remain, with an order to leave the territory, and he was detained for deportation to Poland. The applicant appealed against these decisions, including, amongst other things, an extremely urgent application to suspend the enforcement of the order to leave the territory.

Decision & Reasoning: 

The CALL, in its General Assembly, issued a precedent-setting judgment in which it revised the procedure for suspension in the case of extreme urgency, following on from the M.S.S. judgment by the ECtHR. The CALL, in its judgment, first of all discusses the procedural aspects of the extremely urgent procedure and then applies these to the case at hand.

The CALL states that Article 13 of the ECHR requires an appeal in which the substance of a ground of appeal is examined on its merits. If there are sound reasons to believe that the cited risk of treatment in breach of Article 3 of the ECHR is genuine, then meticulous examination by a domestic authority is required in an independent investigation, conducted as carefully as possible. For such an appeal to be effective, it must automatically have suspensive effect. The CALL describes varioussuspensive periods. There is a statutory suspensive period of five days for an extremely urgent appeal, cf. Articles 39/82, § 4, paragraph 2, and 39/83 of the Aliens Act. However, in the case of an extremely urgent appeal outside this period which contains a reasonable ground of appeal based on Article 3 of the ECHR, Article 13 of the ECHR requires that it have automatic suspensive effect (and consequently that Article 39/82, § 4, second paragraph of the Aliens Act be read in that way).

Then, the CALL assesses the three cumulative tests for an extremely urgent application for suspension : the extremely urgent nature; robust evidence that could justify the revocation of the contested decision; and a serious, hard-to-remedy disadvantage in the event of enforcement of the contested decision.

The first condition is fulfilled as soon as the applicant is deprived of his freedom for the purposes of removal.

The CALL asserts, with regard to the second condition, that Article 13 of the ECHR requires that every reasonable ground of appeal that cites a possible breach of one of the rights enshrined in the ECHR must be subjected to an independent investigation carried out as carefully as possible. If the CALL, through a prima facie examination, finds that there are at first sight reasons to presume that the ground of appeal is serious or that there is at least a strong suspicion thereof, the evidence should be viewed as robust.

As the applicant has not demonstrated that he belongs to a group that is systematically exposed to inhumane treatment in Poland, general statements are insufficient to demonstrate that such a ground of appeal is reasonable. In this case, however, the applicant has included concrete information in his case, as at the Dublin interview he gave at least one indication of the problems that he had experienced in Poland. This is sufficient, according to the CALL, for a duty of investigation on the part of the Aliens Office, which, however, did not fulfil this duty.. It also means that the 'reasonable ground of appeal' test is met.

With regard to the third condition, the serious, hard-to-remedy disadvantage, the applicant must cite concrete information demonstrating a (potential) personal disadvantage. The applicant cites that his removal to Poland would constitute a breach of Article 3 of the ECHR, as there is no sufficient reception and support for asylum seekers with his medical condition, and he would have to do without the help of his family in Belgium. He also cites the fact that he was tortured and that Poland cannot provide him with the necessary protection. For the CALL, a summary line of argument is sufficient, as no reasonable person can contest the assertion that inhumane treatment would represent a serious and hard-to-remedy disadvantage.

Outcome: 

Appeal allowed: the enforcement of the order to remove from the territory is suspended due to extreme urgency.

Observations/Comments: 

This case concerns an extremely urgent procedure to obtain the provisional suspension of an enforceable decision to remove from the territory. The CALL limits itself in this instance to a prima facie examination. An appeal like this complements an appeal for revocation by the CALL, which requests a much longer processing period and does not automatically have suspensive effect. The suspension of a decision to remove from the territory does not necessarily imply the revocation thereof, however.

The General Assembly of the CALL meets very rarely, in order to establish uniformity of case law. This judgment was one of seven with which the CALL tried to bring the suspensive effect and the conditions for an extremely urgent procedure into alignment with the requirement of an effective remedy as imposed on Belgium by the ECtHR in its M.S.S. judgment.

Case Law Cited: 

Belgium - Council of State, 13 August 1991, No. 37530

Belgium - Council of State, 17 December 2004, No. 138590

Belgium - Council of State, 4 May 2004, No. 130972

Belgium - Council of State, 1 October 2006, No. 135618

Belgium - Council of State, 1 December 1992, No. 41247

ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98)

ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Müslim v Turkey (Application no. 53566/99)

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)