ECtHR v. Belgium on detention of children: part II

On 10 January 2010 the European Court of Human Rights released its judgment in the case of Muskhadzhiyeva and others v. Belgium, a case concerning the detention of minor asylum seekers in a closed detention centre. The applicants in Muskhadzhiyeva and others were five Chechnyans: a mother and her four minor children. Following the dismissal of their asylum application, they had been detained in the closed detention centre “127bis”, in wait of their expulsion.

Belgium had already been convicted for the detention of unaccompanied minor asylum seekers in the same detention centre in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium. However, in the case of Muskhadzhiyeva and others the children had been detained along with their mother and not alone. The circumstances of the case were thus different from the earlier one. In Muskhadzhiyeva and others the Court noted that the children had been detained for over a month in a closed centre that was inapt for the reception of children. The Court also attached importance to the worrying state of health of the children, who exhibited serious physical and psychosomatic symptoms as a consequence of trauma. Taking into account the young age of the children, their state of health and the duration of their detention, the Court concluded that their detention had violated art. 3 ECHR.

The Court also found a violation of art. 5 § 1 due to the detention of the children in a closed centre for adults, under the same conditions as an adult person. The Court did not make any reference to the duration of the detention in its appreciation of the case under art. 5. This duration can therefore be considered as irrelevant. The Court has thus clarified that the detention of minor asylum seekers, whether accompanied by their parents or not, in closed detention centres that do not offer conditions compatible with the needs of children is strictly prohibited, even for the shortest duration of time. This conclusion is for instance relevant for the current system employed in Belgium, which had already changed its policy and regulation prior to the judgment. Under the current system, families awaiting expulsion are no longer detained in closed centres, but are instead offered so-called ‘living units’, coupled with the support of a ‘return coach’. However, the relevant Belgian regulations do not exclude completely the possibility of detention in closed centres. This remains possible for example right before the actual expulsion. The Strasbourg Court has now made it clear that such detention can only take place in centres that offer improved conditions.

At the same time, the judgment in Muskhadzhiyeva and others does not offer clarity on the question of detention of minor asylum seekers along with their parent(s) in closed centres in general, regardless of the conditions. Since the conditions of detention in Muskhadzhiyeva and others were so appalling that the Court did not need to answer the broader question, it remains unclear whether detention of families of asylum seekers with children in closed centres is compatible with the ECHR if it takes place in centres specifically designed for and/or adapted to the reception of children. In this respect, the Court’s strong reference in both Mubilanzila Mayeka and Kaniki Mitunga and Muskhadzhiyeva and others to the vulnerable situation in which minor asylum seekers find themselves as well as its explicit reliance on the Convention of the Rights of the Child could prove decisive. The Court has in both cases only referred to art. 3 (best interest of the child) and 22 (protection of minor asylum seekers) of the CRC in the legal reasoning of its judgments. However, it has also mentioned art. 37 CRC under the heading “Relevant international law and practice”. Art. 37 provides inter alia that “[t]he arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”. This provision can play an important role for countries, such as Belgium, that have developed a suitable and functional system for families of asylum seekers with children that does not include detention in closed centres. Under such circumstances, reverting to a system of detention in closed centres, even with improved conditions, will not necessarily be in line with the view of Strasbourg. However, until the Court is faced with a case in which art. 37 CRC might take on a prominent role, the above analysis remains open to interpretation.

For more information on the same subject, but in Dutch, see my contribution “Mensenrechtenhof veroordeelt België opnieuw voor detentie van kinderen” in Juristenkrant, 24 March 2010.

By Stijn Smet