Strasbourg Observers

Domestic enforcement of the right to housing of applicants for international protection: a (small) victory in Camara v. Belgium

September 01, 2023

By Anaïs Brucher

Camara v. Belgium is the first of what could be a long series of cases on the enforcement of the right to housing and material assistance of applicants for international protection in Belgium. On 18 July 2023, the European Court of Human Rights (ECtHR) ruled on the case of Mr Camara, who had been left to live on the streets and fend for himself after applying for international protection in Belgium. This happened even though Mr Camara obtained a final order from a Belgian court to provide him with housing and material assistance. The ECtHR ruled that the Belgian authorities’ apparent refusal to comply with the order aiming to protect Mr Camara’s human dignity violated the very substance of Article 6 ECHR. This case highlights an erosion of the rule of law in Belgium, clarifies the ECtHR’s criteria for exhaustion of remedies, and shows once again that the mysterious notion of ‘very substance’ of rights can be impactful in the ECtHR case law.


The case concerns Mr Camara, a Guinean national who applied for international protection in Belgium on 15 July 2022, three days after his arrival on the Belgian territory. Mr Camara then sought accommodation and material assistance from the Federal Agency for the Reception of asylum-seekers (Fedasil), which he is entitled to under Belgian Law. However, he was turned down due to the Belgian reception centres’ alleged saturation, which left him no choice but to live on the streets. This situation lasted several months despite an immediately enforceable order from the Belgian French-language Labour Court on 22 July 2022 to provide the applicant with housing and support, subject to penalties for non-compliance. The order and penalties were deliberately ignored until 4 November 2022. The order was ultimately enforced due to the ECtHR’s interim measure urging the authorities to comply and meet the applicant’s basic needs. The risk of irreparable damage was then imminent. Beyond suffering from cold and damp weather conditions as well as hunger and health issues, the applicant referred to the scabies epidemic among homeless asylum-seekers worsening due to poor sanitation. The ECtHR has since then granted interim measures to more than 1700 applicants facing a similar situation in Belgium.


The applicant complained before the ECtHR that the delay of execution of the Labour Court order was unreasonably long and contrary to Article 6 ECHR and that the conditions under which he was forced to live led to a situation contrary to Articles 3 and 8 ECHR. The ECtHR reasoned as follows.

Article 6 ECHR: there was a clear refusal of the authorities to comply with the domestic court order (§§ 103-122)

The ECtHR has frequently recalled in its case law that Article 6 ECHR protects the implementation of final binding judicial decisions (Ouzounis and Others v. Greece). Following its standard line of reasoning here, the ECtHR analysed whether Fedasil’s delay in executing the Labour Court order took a reasonably long time, considering the applicant’s behaviour, the complexity of the enforcement proceedings and the behaviour of the authorities (Raylyan v. Russia). It noted that Fedasil and the State did not enforce the Labour Court’s order spontaneously but only because of an ECtHR interim measure. As for the complexity of the proceedings, the Belgian government itself admitted that Fedasil’s reception capacity had proven largely insufficient since 2021 to cope with the increasing number of applicants for international protection. The ECtHR recalled that, even though the scale of the challenges faced by the Belgian State was significant and that the authorities had shown efforts to tackle them, the principle of legal certainty remained one of the fundamental aspects of the rule of law. Strikingly, according to the ECtHR, the circumstances of the present case were not unusual. Instead, it revealed a systemic failure of the authorities to enforce final judicial decisions on the reception of applicants for international protection. Therefore, the time they took to enforce the order and protect the applicant’s human dignity could not be accepted as reasonable. There has not been a ‘mere’ delay on the part of the authorities but a clear refusal to comply with the order, impairing the very substance of Article 6 ECHR (§ 121).

Articles 3 and 8 ECHR: an action for damages against the State should have been brought to exhaust domestic remedies (§§ 123-136)

The ECtHR declared the applicant’s complaint under Articles 3 and 8 ECHR inadmissible for non-exhaustion of domestic remedies (Article 35(1) ECHR). Concerning the complaint under Article 3 ECHR specifically, the ECtHR noted that once Fedasil had assigned the applicant with accommodation, he could and should have brought an action for damages against the Belgian State for his time spent on the streets, as such a remedy was available under Belgian law. While the Labour Court had been asked to decide whether the applicant was legally entitled to a right to housing, it had not been asked to examine the facts of the case as a whole. For the ECtHR to rule on the complaint under Article 3 ECHR would have thus led it to do so as a first-instance court.


At least three elements stand out while reading Camara v. Belgium: its caveat on the state of the rule of law in Belgium, its refined criteria for the exhaustion of domestic remedies, and its use of the undefined notion of the ‘very substance’ of rights to motivate rulings.

On the state of the rule of law in Belgium

The principle of legal certainty, as one fundamental aspect of the rule of law, requires that the rulings of domestic courts are not questioned when they have finally determined an issue (Brumărescu v. Romania). In that regard, as the French Brussels Bar stressed in its third-party intervention to the case, the challenge opposed to the court order was double in Camara v. Belgium (see § 102). Not only did Fedasil and the State execute the order with unreasonable delay, but they also refused to pay the penalties for non-compliance to which they were condemned. The saturation of Fedasil’s reception centres became so severe that the Belgian government openly admitted using a prioritisation scheme treating in priority the cases where the ECtHR had granted an interim measure. Such a scheme shows more than an apparent and acknowledged violation of the right to a fair trial under reasonable delay by the Belgian authorities. It reverses the subsidiary mechanism under which the ECtHR rests, as it relies on the ECtHR to make a first selection of cases that the domestic authorities will treat afterwards. In that regard, one can be surprised that the ECtHR did not explicitly react to this open attack towards its core principle of subsidiarity.

In light of these elements, the finding of a violation of Article 6 ECHR in Camara v. Belgium was welcome. Not only did it set a hopeful precedent for future cases on the enforcement of asylum seekers’ rights, but it also recalled that the right to a fair trial would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party (Burdov v. Russia). Not guaranteeing the proper implementation of judicial decisions would likely lead to situations incompatible with the rule of law. Even more so when administrative authorities are involved in the proceedings as they form one element of a State subject to the rule of law: their failure to comply with the proper administration of justice would immediately render the guarantees of Article 6 ECHR devoid of purpose (Hornsby v. Greece). Further, and in any case, the ECtHR has often repeated that it is not open to state authorities to cite lack of funds as an excuse for not honouring a judgment debt (Prodan v. Moldova). All in all, Camara v. Belgium is thus an excellent reminder that attacks against the rule of law are to be found in many countries around the world. These are times calling for alertness everywhere.

On the non-exhaustion of remedies in relation to the complaint under Article 3 ECHR

In their partly dissenting opinion, Judges Krenc and Derenčinović convincingly criticised the ECtHR’s reasoning on the non-exhaustion of domestic remedies regarding the complaint under Article 3 ECHR. Amongst other things, they expressed their worries, which I share, about the consequences of such reasoning according to which whenever an ECHR violation ceases, the applicant is bound to bring a domestic action for damages against their State if available under domestic law, even when the violation stopped precisely due to the matter being brought before the ECtHR. As we know, the exhaustion of domestic remedies is usually assessed on the date the application is lodged with the ECtHR. Plus, an applicant who has exhausted one effective and sufficient remedy cannot be required to have tried others that were available but probably no more successful (Aquilina v. Malta). Yet at the time the application before the ECtHR was lodged, there was no indication that an action for damages would have been more effective than the action before the Labour Court to redress the applicant’s situation. Further, and if anything, no domestic jurisdiction had been invited to rule specifically on the violation of Article 6 ECHR either, which did not prevent this part of the application from being declared admissible.

There is more. While the ECtHR’s referral to the action for damages before Belgian courts is legally sound, one can regret its profound disconnection from reality. Suppose the applicant had brought an action for damages before domestic courts on top or instead of asking the Labour Court to urge the authorities to comply with the law. Suppose he had been successfully awarded a monetary sum as just satisfaction for his suffering. In light of Fedasil’s persistent refusal to pay the Labour Court’s penalties for non-compliance, it is unlikely that it would have been willing to or capable of paying this monetary sum and redressing the applicant’s situation any better through an action for damages. Ultimately, it would have only led to a waste of resources and time on behalf of individuals whose most basic needs were unmet.

On another note, the dissenting judges highlighted a gap Camara v. Belgium created in the ECtHR logic of proceedings, as the ECtHR granted an interim measure based on Article 3 ECHR but declared the applicant’s complaint under this provision inadmissible on the merits. Progressively, the interim measures proceedings are thus gaining independence from the merits proceedings. This scenario once again raises the question on the nature of interim measures: should the ECtHR be bound to declare a complaint admissible on the merits because it previously acknowledged the gravity of a situation by granting interim measures? Admittedly, Camara v. Belgium presents an interesting untangling case: it is the execution of the ECtHR interim measure by the authorities that then allowed the Belgian government to raise the exception of non-exhaustion of domestic remedies in relation to Article 3 ECHR.  

On the very substance of the right to a fair trial

It is not new that the ECtHR argues that delays in the execution of a judgment may be justified in particular circumstances but should never impair the substance of the right protected under Article 6(1) ECHR (Burdov v. Russia). While the ECtHR has frequently used this notion of very substance of a fair trial (see Winterwerp v. the Netherlandsin 1979 already), which is not established in the ECHR, its content remains mysterious as Van Drooghenbroeck and Rizcallah demonstrated in 2019. There is no explicit definition of the very substance of Article 6 ECHR by the ECtHR. At most, it has sporadically applied some criteria of content attribution to the substance, such as the very existence of a judicial review (Baka v. Hungary) or the interdiction of excessively high court fees (Laçi v. Albania). Its approach to content is nonetheless variable: while, in some judgments, the ECtHR rules that the essence has a fixed content applicable in all cases invariably (Mnatsakanyan v. Armenia), in others, it is a contextual concept, the content of which depends on the circumstances (Nalbant and others v. Turkey). Similarly, in some cases, the ECtHR considers that rights restrictions must respect the very substance of rights on top of being necessary in a democratic society (Grzęda v. Poland). In other cases, the substance is simply one element of appreciation of proportionality amongst others (Çela v. Albania). It also happens that the notion of very substance is used to determine a state’s margin of appreciation (Teslenko and others v. Germany).

In Camara v. Belgium, the ECtHR did not position itself anywhere along all these lines. Rather, the respect for the substance of Article 6 ECHR was used as the single criteria of validity of the right restriction at stake, without consideration for proportionality or margin of appreciation. Implicitly, the ECtHR indicated here that as soon as the very substance of a right is touched upon, any other test for the validity of rights restrictions becomes superfluous. Yet this necessarily implies defining what the very substance of Article 6 ECHR is, which the ECtHR did not do. Since its reasoning revolved around legal certainty and human dignity, one could presume that those form parts of the very substance of the right to a fair trial. However, such an observation does not enlighten us. Those two notions are just as broad and vague as that of substance. Identifying the circumstances under which legal certainty and human dignity are impacted in such a way as to infringe the very substance of Article 6 ECHR remains subject to the appreciation of judges on a case-by-case basis.

Despite the unclarity surrounding the precise meaning of the notion of substance, we intuitively understand the policy choice of the ECtHR to refer to such a notion rather than to a mere proportionality test in Camara v. Belgium. It helps stress the gravity of the situation and the importance of certain core values, where systemic problems infringing upon human dignity are at stake. And perhaps it is precisely the function that the substance of rights is meant to play in the ECtHR case law: acting as a floating device whenever this fits the ECtHR’s findings (or interests?) best. What is less easily understandable is the ECtHR’s logic (if any) and the legal, political or pragmatic reasons behind its decision to refer to this floating device in some cases discussing difficult situations, but not in others.


The Camara v. Belgium Chamber judgment will become definitive if the conditions under Article 44(2) ECHR are respected. Given the enormous challenges faced by the Belgian authorities, one can hope and yet doubt that the State will be able to take action to resolve its systemic incapacity to comply with its own legislation about the right to housing of applicants for international protection. The situation is highly demanding as more than 1700 other applicants have been granted interim measures while their cases are pending before the ECtHR with similar factual circumstances.

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