ECtHR - M. D. and M. A. v Belgium, Application No. 58689/12, 19 January 2016

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Country of Applicant: 
Russia
Date of Decision: 
19-01-2016
Citation: 
ECtHR – M. D. and M. A. v Belgium – Application No. 58689/12, 19 January 2016
Court Name: 
European Court of Human Rights (Second section)
Headnote: 

The Court found a violation of Article 3 in relation to a subsequent application for asylum, which had been rejected on the basis that it contained no new elements indicating that the Applicants ran a real risk of being subjected to inhuman and degrading treatment or punishment on deportation to Russia. Because new information had in fact been provided, the national authorities were under an obligation to thoroughly review the information in order to assure themselves that the Applicants’ rights under Article 3 would be safeguarded.

Facts: 

The Applicants are a Russian couple of Chechen origin. They fled Russia in fear of retaliations following the political assassination of the first Applicant’s father and a revenge-killing perpetrated by his eldest brother. They arrived in Belgium on 31 January 2007 and claimed asylum the next day. Their application was rejected by the Immigration Office on the basis that a personal vendetta did not amount to a ground for asylum. This was confirmed on appeal by the Commissioner General for Refugees and Stateless persons, which held that the Applicants’ account lacked credibility. The Applicants requested the cancellation of this decision by the Council of State, but were refused because they had failed to attend the hearing. They were then ordered to leave the territory.

The Applicants each lodged three further applications for asylum in May, June and August 2012. The Immigration Office refused to consider these on the basis that no new elements had been raised to indicate a well-founded fear of persecution or serious harm, despite the fact that some additional documents had been provided. In respect of all three further applications, the Applicants also applied to the Council of Aliens Law Litigation, seeking actions for annulment of these decisions as well as an extreme urgency procedure in relation to the orders to leave the territory. However, their appeals were again rejected in turn for a lack of new elements.

In September 2012, the Applicants were granted interim measures by the ECtHR under Article 39, preventing their deportation to Russia throughout the duration of proceedings before the ECtHR. Before the Court, the Applicants complain that their expulsion to Russia would constitute treatment contrary to Article 3 of the ECHR, and that they have not had access to an effective remedy in relation to the dismissal of their fourth application for asylum, in violation of Article 13. 

Decision & Reasoning: 

Article 3

The Court first emphasised that Article 3 imposes an obligation on states not to deport an individual where there is evidence that doing so would expose him or her to a real risk of being subjected to inhuman and degrading treatment or punishment (Saadi v UK, N v UK, Hirsi Jamaa and others v Italy). It stressed that for these purposes, Article 3 calls for a thorough (Sultanti v France) and independent (Jabari v Turkey) investigation of the potential risks, but that this does not prevent states from adopting accelerated procedures for processing repeated or manifestly ill-founded claims (Mohammed v Austria).                                                               

Applying this to the facts, the Court noted that the Belgian authorities had failed to consider the Applicants’ risks of being subjected to treatment contrary to Article 3, instead refusing to consider their fourth application on the basis of a lack of new elements. Specifically, it emphasised that the additional evidence provided as new material by the Applicants had been rejected because, according to the date, it could have been included in an earlier application. The authorities carried out no assessment of its relevance, authenticity or probative value, and did not consider the explanations of the Applicants as to why they had been unable to provide the documents earlier, ultimately imposing an unreasonable burden of proof on them. To this end, the authorities had taken an excessively restrictive approach to the existence of new elements. In the absence of a comprehensive review of the risk which the Applicants would face, taking into account the documents submitted in their fourth application, the authorities could not claim to have sufficient evidence to be assured that they would not be at risk of treatment contrary to Article 3 on deportation (Tarakhel v Switzerland). Accordingly, the Court held that deportation would amount to a violation of Article 3.

Article 13

The Court did not find it necessary to separately consider Article 13, in light of its conclusions in respect of Article 3.

Outcome: 

The Court found that the Applicants’ rights under Article 3 had been violated, but did not find it necessary to consider Article 13.

Observations/Comments: 

This summary was written by Georgia Kandunias, GDL student at BPP University. 

Case Law Cited: 

ECtHR - R.K. v. France (application no. 61264/11), 9 July 2015

Belgium - Court of Arbitration, Case No. 61/94, 14 July 1994

Belgium - Council of State, Case No. 112.420, 8 November 2002

ECtHR - Aslakhanova and Others v. Russia, Applications nos. 2944/06 and 8300/07, 50184/07, 332/08, 42509/10 (UP)

ECtHR - Saadi v. Royaume-Uni [GC], Application No. 13229/03

ECtHR - N v United Kingdom (Application no. 26565/05)
Attachment(s): 
Other sources cited: 

Parliamentary documents [Documents parlementaires], Chambre 2005/2006, No. 2478/001, 100

Authentic Language: 
French
State Party: 
Belgium
National / Other Legislative Provisions: 
Belgium - Law on Foreigners [‘La loi sur les étrangers’]
as amended by the law of 8 May 2013 – Articles 48/3
48/4 & 51/8