December 06, 2024
By Sarah Ganty and Eva Brems[1]
Earlier this fall, the Human Rights Centre of Ghent University submitted a third-party intervention in the communicated cases of Obaidi and Others v. Belgium and Al Farj and Others v. Belgium, relating to the ‘post-Camara’ context. In these cases, the Court is faced with similar questions as in the Camara case (previously commented upon on this blog), where it was confronted with the inertia of national authorities refusing the execution of thousands of immediately enforceable orders requiring the State to provide asylum-seekers with accommodation and material support. In Obaidi, Al Farj, and others, the applicants argued a violation of Articles 6 § 1 and 13 and Article 3 ECHR.
The intervention emphasises the seriousness and scale of the Camara-type Rule of Law violations that have continued and worsened, for which no serious perspective of improvement is in sight. Therefore, we submit that it is crucial that the Court rules on the merits of Articles 6 § 1 and 13 ECHR with clear and strong language that names the violations and their causes. Moreover, as the inexecution of judgments leads to the exposure of asylum seekers to very dire situations, we think that it is highly desirable for the Court to examine this type of cases also under Article 3 ECHR. This is because we consider the reasoning that led the Court not to do so in Camara, based on a finding of non-exhaustion of domestic remedies in light of Article 1382 of the Belgian Civil Code (a compensation remedy through civil liability), to be highly problematic, both in principle and in the concrete circumstances of this type of cases in Belgium.
Since January 2022, the Belgian government and Fedasil, the Belgian reception agency in charge of the management and coordination of the reception network (collective and individual places), are systematically departing from the Rule of Law, not only because they do not abide by the Belgian Reception Law, but also because they systematically do not implement the thousands of convictions by domestic courts to provide asylum seekers with material support and shelter (see here and here). Since the Camara judgment, the situation has worsened in both aspects to the point that the departure from the Rule of Law and the subsequent humanitarian crisis are slowly being normalised in the Belgian legal system.
The situation has aggravated since the Camara case. In August 2024, more than 3.900 asylum seekers (mainly single men) were still on the Fedasil waiting list, while the Belgian authorities were not confronted with a drastic rise in asylum applications in 2023-2024 (in fact, applications were lower in 2023 than in 2022). The Belgian State has an obligation of results regarding asylum seekers reception. No force majeure excuse is admissible, especially since the situation has been ongoing for three years. Moreover, since the Camara judgment, the Rule of Law crisis regarding the reception of asylum seekers in Belgium has deepened as non-compliance extended to a more significant number of judgments, even beyond the Labour Courts’ rulings. Theresult is that asylum seekers are left without effective remedies to execute the Labour Courts’ judgments and the enforcement penalties (‘astreintes’). This situation is in breach of Article 6 § 1 ECHR and Article 13 ECHR (in combination with Articles 6 and 3 ECHR) since the Court has made clear that Article 13 would be meaningless if the competent authorities do not enforce remedies when granted.
In September 2024, the Committee of Ministers supervising the execution of the Camara judgment noted the ‘insufficiency’ of the Belgian government’s steps to implement it. The HRC’s intervention notes three main shortcomings in this respect: the increase in reception network capacity is not enough, especially compared with the situation in 2015; certain measures provided for by the law in the event of saturation of the reception network are deliberately neglected; and there is no perspective of improvement in the medium and long term.
The direct consequences of the violation of Article 6 § 1 ECHR – and subsequently, the non-execution of the Camara judgment, directly generate an ongoing severe humanitarian crisis in Belgium. The humanitarian crisis mainly relates to health and shelter. Amnesty International emphasised that many of those denied accommodation have to resort to sleeping in the streets or makeshift tents in dire circumstances. Since the Camara judgment, the situation on the ground has not improved and even worsened. Due to the lack of reception facilities, health problems remain underdetected and undertreated. Moreover, the reception crisis also obstructs access to the asylum procedure, impacts the civil society organisations that try to address the resulting humanitarian crisis, and results in the potential mistrust of asylum seekers in the judicial system, as their rights, even when recognised by a Court order, are systematically denied. If fewer procedures (more or less 250 convictions/month) are lodged before the Labour Courts today, it is not because the situation has improved; it is quite the opposite, as explained by IFDH and Myria.
In a nutshell, we argue that the systematic character and large scale of the Rule of Law violations, as well as the severity of their impact, require the Court to continue to issue strong judgments on the merits, naming the violations of Articles 6 § 1 and 13 and the actors and factors responsible for them.
The Obaidi et al. and Al Farj et al.cases provide an opportunity for the Court to clarify the issue of exhaustion of domestic remedies under Article 3 ECHR, especially in light of Article 1382 of the Belgian Civil Code (hereafter: CC), which enshrines a compensation remedy through civil liability.
The HRC intervention argues that initiating proceedings before the Belgian Labour Courts regarding the Belgian Government’s legal obligation to provide asylum seekers with material assistance and accommodation satisfies the exhaustion of remedies requirement under Articles 35 § 1 and 3 ECHR. This is the case notwithstanding the availability of a compensation procedure through civil liability under Article 1382 CC, for three main reasons.
First, the procedure before the Labour Court should be understood as a remedy under Article 3 ECHR. The reception legislation adopted at the EU level and implemented in Belgian law was adopted to ensure that asylum seekers are treated with dignity, are not exposed to inhuman treatment, are not abandoned to their fate in the street, and have effective access to their asylum procedure according to international standards. Launching a procedure before the Labour Court for the conviction of the Belgian government to provide material support and shelter to asylum seekers implies raising arguments ‘to the same or like effect’ of Article 3 ECHR: the cessation of inhumane treatment.
Secondly, domestic remedies should be effective at the relevant time, according to ECtHR case law, which is not the case for asylum seekers being denied reception: no remedy can be considered as effective in relation to the claims of asylum seekers as there is no remedy which would ensure the execution of the Labour Courts’ judgments. In any case, should any remedy be considered effective in Belgium – quod non –, the procedure before the Labour Court should be regarded as exhausting remedies ubder Article 35 § 1 ECHR. It is settled case law that ‘the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court’. Launching a procedure before the Labour Court is the most appropriate way to get a remedy under Article 3 ECHR for asylum seekers being denied material support and accommodation. More than 11.500 convictions resulted from lodging such procedures, and the overwhelming majority were not executed. In this context, and as long as the judgments of the Labour Tribunal were not implemented, a procedure in compensation through civil liability under 1382 CC was not adequate and effective because ‘it was not capable of preventing the alleged continuous situation’ of non-execution of convictions, as the Court judged in cases related to detention conditions in prison (see e.g. Clasens, Vasilescu, Sylla & Nollomont and W.D.). Article 1382 CC is effective to redress for damages a posteriori only if the situation causing the disadvantage (such as conditions of detention) has already ended before the lodging of any procedure before the Strasbourg Court. Therefore, when seizing the court, asylum seekers who obtained a conviction from a Belgian Labour Court exhausted all the remedies before domestic courts.
Thirdly, if the Court needs to apply Article 35 § 1 ECHR with some degree of flexibility and while avoiding excessive formalism, the protection of human rights implies that this flexibility cannot be interpreted against the protection of the applicants claiming human rights violations as allowing domestic remedies to resurface once the violation has ceased after the lodging of the procedure before the Strasbourg Court.
To conclude, any asylum seekers who turned to the Labour Court to obtain shelter and material support, have exhausted domestic remedies regarding Article 3 ECHR in the sense of Article 35 § 1 ECHR.
What we coined ‘the salami method’—chopping the reparation claims into different remedies and timings—renders the remedy before the ECtHR ineffective.
In recent years, the Court has used that method in a few cases regarding accommodation. In two decisions against France – Yacine Bouhamla and Dessources – which concerned the non-execution of judicial orders to provide housing to families in Paris, the Court found the complaints inadmissible for non-exhaustion of domestic remedies for the compensation aspect of the case, even though the remedy only became available when the violation stopped after the lodging of the procedure before the Court. The Court adopted a similar line of reasoning in M.K. et al. v. France, Camara v. Belgium, and Ngegba and Attarzadeh v. Belgium, all about asylum seekers’ reception and involving interim measures/Rule 39 orders. According to the Court, the remedy under Article 3 ECHR, which appeared once the violation had stopped after the lodging of the procedure and the adoption of an interim measure, was not exhausted.
The HRC intervention argues that this line of case law is not reconcilable with Articles 34 and 35 ECHR read in conjunction with Article 13 ECHR. It is also what Judge Krenc argued for in his separate opinion in Camara, on which the subsequent reasoning builds.
Firstly, the salami method contradicts the above-mentioned case law of the Courtabout conditions of detention in Belgium. In those cases, the Court did not chop the reparation complaints into different remedies, finding that ‘if the applicant was still detained at the time of the application lodging, the remedy must be capable of preventing the alleged continuous situation in order for it to be effective’. Neither did the Court ‘chop’ the claim for reparations between timings, concluding that Article 1382 was not effective in this context, as it allows only for compensation, appreciating the condition of exhaustion of domestic remedies at the moment when the claim was lodged. The Court ruled the Article 3 complaint on the merits in all these cases. The conclusion should not be different for asylum seekers still not provided by the Belgian government with material support and accommodation at the time of the lodging of the application: Article 1382 was not capable of preventing the alleged continuous situation, as explained in the first section.
Secondly, the salami method goes against the principle that the exhaustion of remedies is appreciated at the relevant time. The moment when the violation ceased (before versus after lodging the procedure) has constituted one of the core elements of Articles 34, 35, and 13 and explains why temporality is so important in interpreting Article 35 ECHR not only in relation to the exhaustion of remedies but also in relation to the principle that the effective remedy must exist at the date when the application is lodged: effectiveness must be established with regard to the relevant period. The salami method is likely to change this core principle as it implies that the moment when the violation ceased, i.e., before or after the lodging of the procedure, does not matter anymore for the admissibility of the compensation claim.
Thirdly, the salami method turns Article 35 ECHR on its head, as it implies that all the cases involving a violation that ceased after lodging an application before the Court are likely to be declared inadmissible, should a compensation remedy exist. This revolution has yet to be acknowledged due to the limited number of cases it has been applied to, but it is likely to have a long-lasting (and detrimental) impact on human rights protection. Most human rights violations imply a possibility to ask for compensation in one way or another, which is, in many instances, subsidiary to the main claim of cessation. Therefore, hundreds of cases brought before the Court, including cases related to detention conditions, expulsion and extradition, expropriation, etc., are likely to be considered inadmissible simply because the violation has ceased in the meantime after lodging an application before the Court. In our view, by applying the salami method, the Court does not apply an exception to Article 35 but changes its paradigm: the mere fact that the violation has stopped is likely to trigger a new remedy that needs to be exhausted by the applicants after seizing the Court with potentially detrimental consequences for the effectiveness of remedies, but also for the Rule of Law in general.
Fourthly, the salami method, consisting of chopping the claim of reparations into different remedies and timings, leads to inflating the remedies for applicants at domestic and international levels, undermining the effectiveness of remedies. Requiring an applicant who has been denied for months the execution of domestic judgments to come back to domestic jurisdictions for a claim for compensation after the violation has ceased (months) after a Rule 39 order is neither realistic nor effective. This means that to have access to a remedy in compensation, the passage before the Strasbourg Court becomes an indispensable trigger and condition. A remedy that systematically needs a Rule 39 measure to become available cannot be considered effective. Such a procedural detour makes access to justice a mirage.
In any case, whether or not the salami method is applied, we submit that Article 1382 CC, enshrining a compensation remedy through civil liability, cannot be considered an effective remedy in the circumstances of asylum seekers who have been denied their right to accommodation and material receptions for months, despite judgments convicting the Belgian government and Fedasil to do so and despite interim measures ordered by the Strasbourg Court. There are three reasons for this.
Firstly, Article 1382 does not imply reasonable delay and promptness, especially for the applicants who are in Brussels (most of them), due to the excessive length of civil proceedings before the courts of the judicial district of Brussels. The Strasbourg Court pointed out this structural problem, which led to Belgium’s conviction more than twenty times since 2008, including a year ago in Van den Kerkhof v. Belgium.
Secondly, it is settled case law that in appreciating whether a remedy has been exhausted in the sense of Article 35 § 1 ECHR, the Court must consider ‘the general legal and political context’ in which the remedies operate. The political and legal situation regarding asylum seekers should be considered when assessing the effective character of the compensation procedure of Article 1382 CC, which appears futile in a context where the Belgian government has systematically refused to execute all the rulings related to the reception crisis. There is a clear pattern of acts incompatible with the Convention and obvious non-compliance by state authorities of domestic rulings.
Finally, the remedy is inadequate given the situation of asylum seekers. One can reasonably fear that many applicants will never lodge a 1382 CC complaint and be compensated through civil liability proceedings. Indeed, once they eventually receive a shelter after months, asylum seekers who have been shaken by the experience of being deprived of any material support have to focus on recovering from it medically, psychologically, and legally (they have to catch up on their asylum procedure …). Not only do they have very little information in the reception center about the possibility of such a civil liability procedure (i.e., a lawyer would have to inform them and let them know about such an opening), but importantly, they might have lost confidence in the system as well given the systematic refusal of the Belgian government to implement previous judgments about their situation. Because of many other vital concerns, i.e., the asylum procedure, they most likely will not prioritise action in compensation before civil courts.
In a nutshell, because of the impact of the Rule of Law violations on the dire living conditions of vulnerable people, it would be appropriate to examine such cases under Article 3 ECHR. We argue that requiring applicants who were suffering from a violation that was ongoing at the time they submitted their ECtHR application and which later ceased (most likely as a result of submitting that application or of interim measures ordered by the Court) to exhaust an additional remedy in compensation before the civil courts, is highly problematic both in principle and in the specific circumstances of this type of cases.
[1] The authors of this blog post wrote the TPI for the HCR.
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