January 18, 2017
Guest post by Moritz Baumgärtel, lecturer and researcher at the Department of European and International Public Law at Tilburg University. Moritz recently defended his PhD at the Université libre de Bruxelles. His project was a part of the IAP research network “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective”.
On 17 November 2016, the Grand Chamber of the European Court of Human Rights decided to strike off its list of cases the application in V.M. and others v. Belgium. The case concerned the reception conditions and the exposure to a risk of inhumane and degrading treatment of a Roma family in the context of a “Dublin transfer” from Belgium to France. The matter was referred to the Grand Chamber following a judgment of the Second Section on 7 July 2015, which had found violations of articles 3 and 13 of the ECHR. In striking out the application because the lawyer failed to maintain contact with the clients, the Grand Chamber added yet another chapter to the already lengthy volume on “disappeared cases”. The Court’s decision raises serious questions regarding the effectiveness of its remedies and the problems it poses for strategically minded lawyers in the migration domain.
As already explained in a previous post on this blog, the applicants were a family of Roma origin with five children, one of which suffered from severe physical and mental conditions. In 2010, the family moved from Serbia to France in 2010 in response to what they described as experiences of discrimination and ill treatment in their country. Their asylum application failed, however, which is why the family returned to Serbia before once again trying their luck, this time by filing an application in Belgium. The Belgian authorities in turn expectedly invoked the Dublin Regulation (Dublin II at that time) to request France to take charge of a case that had already been dealt with there.
Facing the prospect of having to return to France where only over-night accommodation was provided for despite the disability of their daughter, the family contacted a lawyer to challenge the transfer decision. During that time the family were allocated spots in reception centres as the second applicant was pregnant. However, three month after the birth of the child and with their appeal still pending, the family was removed from their reception centre. Following complications in finding and moving to another reception centre 160 km away from Brussels, the family ended up sleeping on the street close to Brussels North Station for about three weeks before leaving Belgium and heading to Serbia at the end of October 2011. The disabled daughter eventually died from a lung infection about two months later.
The Grand Chamber’s reasoning is as short as it is straightforward: the case was struck off the list on the basis of article 37(1)(a) of the ECHR, which reads that ‘the applicant does not intend to pursue his application’. The Court deduced this finding from the fact that the lawyer had lost contact shortly before the Second Section issued its decision. While the reasons for the disappearance of the applicants are not known, the Court emphasised that ‘the loss of contact was not… a consequence of any act of the respondent Government’ and that ‘there [is not] anything to suggest that the precarious conditions in which the applicants lived in Serbia were such as to prevent them from maintaining some form of contact with their lawyer’ (para. 38), which they had been able to do previously. The Court also dismissed the applicants’ lawyers’ concern that the benefit of the judgment of the Second Section would be lost because of the removal of the case. It stressed that this outcome, while ‘prejudicial to the applicants’, was indeed ‘the consequence of their lack of contact with the lawyer’ (para. 39).
Judges López Guerra, Sicilianos and Lemmens issued a dissenting opinion, pointing out that the Grand Chamber could (and should) have relied on article 37(1) in fine to continue the examination regardless of the loss of contact with the applicants, as required by ‘respect for human rights as defined in the Convention and the Protocols thereto’. The opinion states more specifically that the case had presented a welcome opportunity to elaborate on the concept of vulnerability and to clarify the responsibilities arising for the host states on the one, and asylum seekers where questions of reception are concerned.
Let us for a moment rearrange the puzzle pieces that were so surgically set apart by the judgment: a Roma family with five children gets out of a train at the Gare du Nord in Brussels. The mother holds her youngest in her arms, which had been born only three months earlier. The father is pushing a wheelchair (or possibly a pushchair, as was the case for many years) of the 10-year-old daughter suffering from cerebral palsy. She is not able to talk and does not appear to understand others. What is more, the father is worried that she may have another epileptic seizure given this stressful situation. The weather in October is cold, but the family does not know where to go and remains therefore at the station. Another Roma woman approaches them out of pity. She advises them to go to a nearby charitable organization, which arranges ‘voluntary return’ under a federal programme. Desperate and surrounded by other victims of Belgium’s permanent ‘reception crisis’, the parents finally come to the same difficult decision as they did two years earlier in France, namely to return to Serbia. What they did not know at that time was that their daughter would pass away two months later, just a few days before Christmas. Did she get pneumonia because they stayed for too long in Brussels or because of the subsequent return to Serbia? It is difficult to grasp the pain that this question must cause in the parents.
It is important to recognise the tragic story of the family at this point because sadly, it is not of any relevance at all to the reasoning and the outcome in this case. Even worse, the judgment sets aside an earlier ruling which had found violations of articles 3 and 13 of the Convention and which had conceded to the applicants a monetary compensation of 22,750 euros. The Grand Chamber does not hide that it considers this result one of the applicants’ own making where they have ‘failed to keep her [the lawyer] informed of their place of residence or to provide her with another means of contacting them’ (para. 36). The defiant and almost sulking tone of the Court reaches its climax in the next sentence where ‘it considers that it can conclude on that basis that the applicants have lost interest in the proceedings and no longer intend to pursue the application’. At the risk of sounding sarcastic, could it have been that the family has been occupied with other and more urgent problems than legal proceedings in Strasbourg? Leaving legal questions aside, the Court certainly could have skipped patronizing applicants suffering from multiple and intersecting vulnerabilities.
Looking at the substantive question of the applicability of article 37(1), matters are more complicated as a number of issues arise here. The dissenters lament the decision to strike out the case ‘because there are special circumstances in the present case relating to respect for human rights… which go beyond the particular situation of the applicants’. In doing so they draw attention to F.G. v. Sweden where, unlike in the present case, the Court decided to adjudicate on the merits, partly also because the ‘impact of the… case goes beyond the particular situation of the applicant’ (para. 82). But the problem is not merely one of consistency in the application of article 37. Recent research has identified a more general trend where the Strasbourg Court strikes out ‘what may well be the most promising migration cases’ (Dembour 2015, p. 325). Two factors underlie this development. On the one hand, governments increasingly adopt ‘anticipatory measures’, most notably by offering residence permits to the applicants, thus preventing legal change by sacrificing the ‘tangible gain’ for a ‘rule gain’ (Galanter 1974). Belgium specifically has skilfully played this card on previous occasions. In S.J., for example, it provided a residence permit to a HIV-positive applicant with children who demanded a leave to stay on medical grounds, just in time for the Grand Chamber to decide to drop the case (and Judge Pinto de Albuquerque to formulate a fiery dissent criticising Belgium’s ‘cost-benefit strategy’ of ‘“buying” a strike-out decision’).
On the other hand, the Court itself sometimes imposes quite strict requirements for the powers of attorney. While such rigour is usually laudable, it often has very problematic consequences in the migration area. One example (already elaborated elsewhere) is the landmark Hirsi case in which the lawyers and supporting NGOs were informed by their own negative experience in Hussun where the Court was dissatisfied with the level of detail of the powers of attorney. As a result the Italian litigators went to great lengths in Hirsi to locate the victims of the Italian pushback – most of who were living in precarious conditions in Libya – and obtain not only written powers of attorney but also fingerprints. This quite naturally reduced the number of applicants in this case, with only 22 of the approximately 200 passengers eventually being parties to the proceedings. Just as in V.M., serious questions arise whether such a formalistic approach is appropriate in situations where migrants are difficult to locate or likely to go into temporary hiding, or where their trust in the legal system, including their own lawyers, may understandably be low. In the context of V.M. the impact of this approach is much more detrimental than in Hirsi as it altogether defeated the prolonged efforts of Emmanuelle Néraudau, an accomplished human rights lawyer and lecturer at the University of Nantes. In short, strategically minded lawyers in particular confronted with yet another obstacle in what is already a challenging area of human rights law (Dembour 2015; Baumgärtel 2016).
“Disappeared cases” like these are obviously frustrating for supporters of migrant rights. At the same time, strikeouts probably give the Strasbourg judges the occasional but welcome ‘way out’ at a time where the Court faces politically sensitive migration cases on an almost daily basis. In V.M., the Court got ‘off the hook’ once again, although at the expense of a family with a particularly heart-breaking story.