October 23, 2020
By Anne-Katrin Speck,[*] PhD Researcher within the ERC-funded project DISSECT: Evidence in International Human Rights Adjudication at Ghent University
Timing can be a peculiar thing sometimes. On 10 September 2020, a Chamber of the European Court of Human Rights ruled on the case of B.G. and Others v France,[†] finding that the accommodation conditions endured for several months by an asylum-seeking family in a tent camp in France had not amounted to inhuman or degrading treatment. At the very same time, news channels were showing flames raging in Moria, Europe’s largest refugee camp, on the Greek island of Lesvos. A horrific fire had broken out there the day before, and would leave many thousands of refugees without shelter and access to basic services. The handing down of the judgment and the Lesvos fire are assuredly unrelated events. Yet, their coincidence is a stark reminder that the living conditions in camps for people fleeing their country are as grave a concern as ever.
But how bad is too bad? When are the living conditions in a camp so harsh as to attain a level of severity that is impermissible under the Convention? Who ought to prove this, and how can they? This post focuses on these evidentiary questions. We shall see that the Court’s treatment of evidence in B.G. and Others may prove to be the camel’s nose. According to this purported Arab proverb, once you allow a camel to stick its nose under your tent, the camel is bound to end up inside. Thus, a seemingly minor decision will have much wider, undesirable consequences. Much in the same manner, the Court’s approach to evidentiary issues in B.G. and Others, while unlikely to receive much attention, may have serious repercussions.
The application in B.G. and Others was lodged by four families from the Western Balkans who came to France in 2013 and applied for asylum. The Court’s judgment on the merits, however, concerns only family Z.—a couple from Kosovo and their three children aged two, nine and eleven at the material time. The other families had lost contact with their legal representative, which is not uncommon for asylum seekers, given the precariousness of their lives. Consequently, their applications were struck out.
Family Z. complained before the Strasbourg Court that the conditions in which they lived in an official tent camp in the French city of Metz for more than three months in the summer of 2013 had violated Articles 3 and 8 of the Convention. The Court rejected the Article 3 claim on the merits and declared the family’s Article 8 claim inadmissible.
What is striking is that the Court did not dispute that the conditions in the camp were suboptimal. It seemed to have accepted that the camp « était saturé, offrait des conditions sanitaires critiques et était devenu, au fil des semaines, insalubre (…) » (para 89). The reason why the Court nonetheless considered itself ‘not in a position to conclude’ (ibid) that there had been a violation of Article 3, or at least Article 8, is two-fold.
First, the Court noted that the French authorities had not remained ‘indifferent’ to the applicants’ situation. This factor allowed it to explicitly distinguish B.G. and Others from M.S.S. v Belgium and Greece. The applicant in M.S.S. had been living in the streets without any support whatsoever from the Greek state, under constant fear of being robbed or attacked, and without any real prospect that his living conditions would improve. The Z. family, by contrast, had reason to hope, in the Court’s view, that things would get better. After all, the French authorities had not been entirely passive: the Metz prefecture had reacted to the complete saturation of accommodation services for asylum seekers by turning a car park into a tent camp. There, the family had been able to attend to their most basic needs—food, hygiene and a place to live—until they were provided with accommodation in a council flat in the autumn. The oldest children had been able to attend school, and all three children had been vaccinated. The Court also stressed that the situation had been temporary, lasting just over three months.
It is worth noting that all these considerations pertain to elements that do not appear to have been central to the applicants’ complaint. It would seem that the family’s main complaint related to the physical living conditions in the camp, notably as regards hygiene and safety standards, which they argued had been highly inappropriate for very young children. It is the [AS1] second basis for the Court’s non-violation finding, therefore, that deserves closer analysis: its finding that the applicants had failed to provide ‘specific elements’ (para 87) allowing it to make a concrete assessment of their personal living conditions. In particular, the Court seemed to criticise the applicants for having provided a too ‘general’ and not sufficiently personalised account. This is where the case starts to revolve around evidence. In fact, the Court considered it appropriate to recall, in quite an extensive paragraph in its judgment (para 83), the principles developed in its case law regarding the treatment of evidence. A rare move which suggests that evidence became a topic of discussion at some point in the Court’s deliberations. This may well have been the case, since the seven-Judge Chamber was faced with conflicting accounts of just how harsh the conditions had been.
It is worth contrasting the applicants’ account with those of the respondent state with respect to the situation in the camp. The applicants described overcrowded, unsanitary and unsafe conditions: families with children would often be crammed into two-person tents, all erected on concrete ground. It had taken 15 days and sustained pressure from civil society organisations for the government to make available sanitary facilities, they submitted. By early to mid-September, up to 450 people were sharing four showers, four washbasins, eight urinals and four closed toilets. Urgently needed repairs were not carried out swiftly, making the sanitary conditions even more precarious. Furthermore, garbage collection was irregular, and sloppy electrical installations posed a danger to the camp’s inhabitants. The applicants submitted photographs, articles from a local newspaper, and a report drawn up by a local association that described the camp as a ‘shanty town’.
As for the government, it contested any delay in making available the sanitary facilities, and claimed that necessary repairs had been carried out without delay. It also noted that the number of sanitary blocs was doubled in September 2013. Photographs submitted by the government showed tents equipped with household appliances and a lounge area.
The applicants’ account, as summarised in this synthesis which in turn reflects the judgment, is in fact more extensive than the government’s, and less pervaded with information that seems irrelevant for an assessment of the family’s living conditions (such as the camp’s proximity to a reception centre for asylum seekers, which the government invoked as an advantage of the site (para 7)). The applicants’ description is also consistent with the two third party interventions, which provided damning accounts of the conditions for asylum seekers in France at the material time and deplored, among other things, « de[s] défaillances structurelles liées à la sous‑capacité du dispositif national d’accueil » (para 68).
But if the applicants’ account was, in fact, both more detailed and more pertinent than the government’s, why did their complaint not succeed?
I would submit that the likely reason why the Court did not find a violation of Article 3 is its insistence upon a very high level of gravity before it will regard any condition as inhuman or degrading. This threshold is difficult to define in cases such as the present one, where the Court cannot draw on authoritative guidelines by the European Committee against Torture (CPT)—unlike, for example, in cases relating to prison overcrowding, where clear minimum standards exist as to how many square meters of living space must be provided to each person. When situating B.G. and Others in the Court’s wider case law, it seems that the conditions to which family Z. was exposed were simply not bad enough: the situation did not last very long; the living conditions in the camp, albeit precarious, did not cause fatal or long-term illness; nobody starved; nobody died.
Because of this, it is highly unlikely that the Court would have ever found the impugned conditions in the Metz camp to have reached a level of severity that was impermissible under Article 3, regardless of how much additional evidence the applicants might have submitted (except, perhaps, if it had later materialised that one of the children had died as a result of the poor conditions). With the threshold being what it is, even the most elaborate documentation of the conditions in the camp at the material time would arguably not have swayed the Court. The non-violation finding was not due to a lack of evidence. Thus, any suggestion on the part of the Court that what was missing was a personal account of the applicants’ specific situation would be a red herring.
It was arguably precisely on account of the (unacknowledged, yet apparent) predominance of the Article 3 threshold that the Court did not feel compelled to thoroughly scrutinise all the evidence available in this case. It failed to establish the probative value of key pieces of evidence, and to draw important inferences from the parties’ submissions.
In the light of the undeniable power of images—remember the flames in Moria, now engraved in our collective memory—this lack of engagement with key factual questions is particularly regrettable insofar as the Court declined to resolve a dispute among the parties about the probative value of the available photographic evidence. Those reading the judgment are fobbed off with a brief description of these pictures and the knowledge that both the applicants and the government challenged the weight of the photographs submitted by the other party. But we also know that ‘[p]hotographs cannot tell stories. They can only provide evidence of stories, and evidence … demands investigation and interpretation.’[‡] Yet, the search in the B.G. and Others ruling for such ‘investigation and interpretation’ is in vain. This is particularly problematic because something seems fishy about the pictures presented by the government of (presumably beautiful, new) tents, equipped with cooking facilities and a lounge area. There is no way to know whether these—moreover undated—photographs were taken in the camp in Metz, or if they came straight out of a glossy advertising brochure by the tent manufacturer. The photos submitted by the applicants, by contrast, showed the situation on the ground at the time the camp was dismantled in the autumn of 2013: various types of tents, erected close to each other on the tarred ground, and most often reinforced with tarpaulin and planks. Even without the benefit of having consulted the case file, there can be little doubt about which photographs speak the truth about the conditions in the camp. The Court, however, is silent on the issue.
Not providing an authoritative assessment of the conditions in the camp, in turn, allowed the Court to shift the blame for the alleged scarcity of information about the Z. family’s personal situation onto the applicants. The Court was by no means bound to take this stance. It is free, and has indeed stressed repeatedly, that it will be prepared, to draw inferences from the facts and the parties’ submissions (Nachova and Others v Bulgaria, para 147). What would this have meant in B.G. and Others? For one, the Judges could have used common sense reasoning and their own imagination to find that sharing four showers with some four hundred people takes a toll on a five-person family’s physical and mental health. The Court could also have gathered from the applicants’ submission that the smell in the camp must have been almost unbearable, if one accepts that the few garbage containers at the inhabitants’ disposal were not emptied regularly (during summer time). The Court might even have concluded that the parents must have been worried about their children’s safety, knowing that electrical cables were running through water in the camp and toilets were bound to often be unclean.
As I see it then, the reason why the applicants’ claim failed was not poor litigation or a lack of persuasive evidence, but rather a lack of readiness on the part of the Court to embrace a more generous view of human rights. In this connection, the Court’s reminder about the high level of persuasion necessary to establish a fact—it recalled that it applies the standard of proof ‘beyond a reasonable doubt’ (although this notion differs from that in domestic criminal proceedings)—is but a distraction. It is not the applied standard of proof which was problematic for the applicants, but rather the Court’s own unwillingness to live up to its professed readiness to have regard to all the evidence, including indirect evidence such as inferences drawn from the parties’ observations.
Would a more analytical approach which ensured that the correct inferences are drawn from the documented conditions have made a difference? It probably would not in respect of Article 3, given the threshold of severity the Court applies. Had the Chamber been so minded, the applicants might, however, have stood a chance to succeed with their ‘fall-back’ claim under Article 8 (see Dembour 2015). At the very least, a thorough assessment of all the evidence should have made it impossible for the Court to declare the Article 8 complaint manifestly ill-founded on the basis that it was not being ‘sufficiently substantiated’ (para 97).
In conclusion, the Court’s failure to draw inferences and assess the probative value of key evidence—all while suggesting that insufficient evidence was at the root of its non-violation finding—makes B.G. and Others a camel’s nose: a seemingly innocuous judgment, it could have far-reaching implications. With the Court’s high normative threshold unlikely to change anytime soon, asylum seekers will stand little chance of prevailing with complaints about their living conditions until and unless the Court reverses course, and truly starts drawing on all the available evidence—direct and indirect. We can only hope for such a change of course, because once the camel is in the tent, it may take another disaster of Moria proportions before we see some straight talking from the Court about the living conditions in Europe’s camps.
[*] The author wishes to thank their doctoral supervisor, Professor Marie-Bénédicte Dembour, for extensive and thought-provoking comments and suggestions.
[†] The judgment is available in French only. Quotations in English throughout this text are the author’s translation.