October 13, 2026
By Luna Lanckvrind
What are the consequences when applicants distort the facts underlying requests for urgent protection before the European Court of Human Rights (ECtHR)? In the case of Mouelhi v. Belgium, the Court attempted to settle this question, venturing into territory not previously explored. In a particularly admonitory manner, it expanded the scope of the admissibility criterion of abuse of the right of individual application under Article 35(3)(a) ECHR, normally reserved for applications and conduct during the proceedings, to misleading submissions made in the context of interim measures under Rule 39(1) of the Court’s Rules of Procedure, through which the Court can indicate urgent measures to a State when an applicant faces an imminent risk of irreparable harm to one of the Convention rights pending its examination of the case. The decision, which resulted in the application being rejected, was accompanied by a press release, itself a rare feature for abuse findings.
This post delves deeper into the expansive interpretation of abuse in Mouelhi, viewed against the functions of the abuse clause and the tension between factual integrity and individual justice that inevitably follows from the Court’s approach. A comparative perspective on the case has already been offered elsewhere.
The applicant is an asylum seeker in Belgium who had been permanently excluded from the Fedasil reception network on 18 August 2022. On 8 May 2023, the Brussels Labour Court annulled that decision and ordered Fedasil to provide him with housing and material assistance. The applicant argued that the judgment remained unenforced, in violation of Articles 6(1) and 13 ECHR, and that the conditions in which he was forced to live for several months constituted inhuman and degrading treatment contrary to Article 3 ECHR. On 13 October 2023, he requested an interim measure under Rule 39, stating that he was still living in the streets in Belgium in extremely difficult conditions, a claim he and his counsel later maintained throughout the proceedings. The ECtHR granted the request five days later, on 18 October 2023, indicating that the State should ensure that his basic needs were met through the provision of accommodation and material assistance (paras 4, 6 and 7-11).
The Government later brought forward evidence that the applicant had applied for international protection in the Netherlands on 18 May 2023 and had received shelter there since 19 May 2023. The applicant did not dispute this, explaining that he had gone to the Netherlands because it offered ‘an opportunity to end his daily difficulties in obtaining food and shelter’, but maintaining that he intended to return to Belgium as soon as Fedasil invited him for an interview concerning his application for international protection. He further claimed that he had not been notified that his Belgian asylum procedure had ended and had never been informed that he had lost his right to material reception in Belgium (paras 14-15).
In light of this information coming to the surface, the Court examined of its own motion whether the application amounted to abuse of the right of individual application. It considered that, when the applicant requested an interim measure in October 2023, he was not living on the streets in Belgium, as he had claimed, but had already been accommodated in the Netherlands for almost five months. The applicant’s representation of his living situation was contrary to the actual circumstances and, according to the Court, capable of having a decisive influence on its assessment of the Rule 39 request in light of the Article 3 risk invoked by the applicant. It further held that the misleading information prevented it from ruling on the admissibility and merits in full knowledge of the facts, leading to the rejection of the petition under Article 35(3)(a) and 4 ECHR (paras 22-32).
According to the Court, the concept of abuse within the meaning of Article 35(3)(a) ECHR requires conduct that is manifestly contrary to the purpose of Article 34, which guarantees the right of individual application, and that impedes either the proper conduct of the individual proceedings or the functioning of the Convention system more broadly. Consequently, the criterion serves two related purposes.
First, it protects the effectiveness of the right of individual petition, which is the procedural means through which applicants seek protection of their Convention rights before the Court. As Judge Serghides eloquently put it, abuse is ‘parasitic’: once that mechanism is corrupted, the protection it is meant to secure risks being undermined altogether (Saure v. Germany, dissenting opinion Judge Serghides, paras 4-8).
Second, it safeguards the long-term effectiveness of the protection system set up by the Convention, and more specifically the Court’s capacity to fulfil its mandate under Article 19 ECHR in the face of a persistent caseload which, although gradually decreasing in volume, is becoming increasingly complex. Applications built on misleading or unsubstantiated facts consume limited judicial resources that could otherwise be devoted to cases which at least prima facie satisfy the Convention’s admissibility requirements(Zambrano v. France, para 37; Mouelhi, para 31).
When misleading conduct is at issue, the notion of abuse serves the particular function of safeguarding the factual integrity of the proceedings. Under Rules 44C and 47(7), applicants have to cooperate with the Court, present their case accurately and disclose relevant information of their own motion. Although they are not obligated to include every detail or anticipate every later development, they have to unveil information obviously important to the Court’s examination, so that the case can be assessed in full knowledge of facts corresponding to reality (Mouelhi, para 25).
Deceptive behaviour can consist either in withholding essential information or submitting false information. Omissions include facts deliberately withheld from the application as well as failures to inform the Court of significant developments arising during the proceedings. In these instances, the Court usually asks if (1) the undisclosed info concerned the very core of the case and (2) if the applicant provided a sufficient explanation. A fact belongs to that core when it is capable of exerting a decisive influence on admissibility, the merits or just satisfaction (Volozhanin and Znakovan v. Ukraine, para 28).
When applicants actively submit false information, the Court generally asks whether they knowingly presented facts contrary to reality or relied on forged or falsified evidence as authentic. ‘Untrue’ has traditionally been understood narrowly, requiring a deliberate distortion of irrefutable facts, ordinarily supported by Government evidence. Factual disagreement or inconsistencies alone are thus insufficient; disputes concerning an applicant’s motives, the legal characterisation of the facts, value judgments, the interpretation of domestic law or the merits of the complaint do not ordinarily amount to the submission of untrue information (see for example Simoncini v. San Marino, paras 71-77; Prenča v. Serbia, paras 53-56) Whether information belongs to the core of the case, and thus emits a decisive influence has acquired an increasingly prominent role in false information cases as well (see most recently Volozhanin and Znakovan v. Ukraine, para 19 and further).
In Mouelhi, abuse is further extended into Rule 39 proceedings, even though requests for interim measures are commonly prepared under acute urgency, before the facts are fully set straight and sometimes before the application itself has been finalised. By proclaiming that deliberately supplying false information at this stage can constitute abuse in the same manner and under the same conditions as misinformation in the application form, the Court permits misconduct arising during an exceptionally early and provisional phase, governed by a lower ‘very prima facie’ evidentiary assessment, to bring down the application as a whole (Mouelhi, paras 25-26 and 32).
The legal foundation for such far-reaching extension is less secure than the decision suggests. Article 35(3)(a) concerns abuse of the right of individual application guaranteed by Article 34, rather than procedural misconduct before the Court in the abstract, a limitation that the Court’s own case law on inter-State applications confirms. Because proceedings under Article 33 do not involve the exercise of the individual right of petition, the Court has declined to apply Article 35(3)(a) to them and has instead considered, cautiously and without definitively resolving the issue, whether abusive conduct might be addressed through a broader principle prohibiting abuse of process before an international tribunal (Cyprus v. Turkey, p. 135; Loizidou v. Turkey, para 45).
Rule 39 undoubtedly contributes to the effectiveness of Convention protection, albeit through a function distinct from that of the right of individual petition. Interim measures are intended to prevent imminent and irreparable harm while the underlying complaints remain unresolved; they are provisional, do not determine admissibility or merits and do not themselves confer an autonomous individual right. A State’s refusal to comply with an interim measure frustrates the effective exercise of the right of petition by depriving the eventual proceedings of practical meaning. In that sense, Rule 39 protects the effectiveness of individual petition by preserving the conditions necessary for the Court ultimately to examine the application. Yet it does not follow that misleading the Court about the need for interim protection also impairs the effectiveness of the petition itself. When the misinformation bears only on whether urgent protection is required, the factual core of the underlying application could remain unaffected. The functional connection between Rule 39 and Article 34 does not by itself establish that misuse of the interim measure procedure amounts to abuse of the right guaranteed by Article 34.
Mouelhi itself demonstrates that the pieces do not fit that easily in the puzzle. The Rule 39 request rested on a false description of a present risk that had already disappeared once the applicant obtained accommodation in the Netherlands, which made the information essential to the interim measure decision because the urgent protection sought was no longer required. But its decisive influence on the need for temporary protection did not, for that reason alone, impair the Court’s ability to determine the underlying Convention complaints. The applicant continued to seek judicial examination of the allegedly inhuman and degrading living conditions he had endured for several months and Belgium’s failure to execute a domestic judgment in his favour, and although his accommodation in the Netherlands affected the duration of any continuing violation and perhaps the assessment of just satisfaction, it did not resolve whether the earlier treatment had violated Article 3 or whether the domestic judgment had been implemented with sufficient timeliness..
The particular facts of Mouelhi offered the Court an easy way out of these troubled waters, since the inaccuracies had been repeated in the application form and maintained when the Court later requested updated information, thereby bringing the misinformation into the Article 34 proceedings themselves (Mouelhi, paras 27-29). Once that had occurred, its effect on the proper conduct of the application could legitimately be examined, but the decision never clarifies whether this repetition was indispensable to the finding of abuse or merely reinforced a conclusion already reached on the basis of the Rule 39 request alone. That ambiguity leaves open the possibility that misinformation confined to an interim measure request could extinguish an otherwise accurately presented application concerning distinct and earlier violations; what would have happened if the applicant had corrected the information later on?
The Court’s reasoning is especially difficult to sustain through the language of essentiality. Information may be decisive to whether interim protection is required without being decisive to the admissibility or merits of the underlying application. Interim measures are inherently provisional and cannot prejudge the outcome of the proceedings they are intended to preserve. A fact may therefore justify granting, maintaining or lifting temporary protection without determining whether the underlying Convention complaint remains viable. Treating these forms of relevance as interchangeable allows essentiality to migrate from one procedural setting into another.
In this respect, Mouelhi continues the broader understanding of what may lie at the ‘core’ of a case adopted in Kovačević v. Bosnia and Herzegovina. There, misleading information supplied in a procedural reply was treated as capable of supporting a finding of abuse because of its potential influence on the proceedings, even though it was not itself part of the substantive discrimination complaint. Judge Vehabović considered the information ‘completely irrelevant’ to the case and criticised the majority’s approach as ‘overly formalistic’ (Kovačević v. Bosnia and Herzegovina, paras 138-139; dissenting opinion of Judge Vehabović).
Mouelhi carries that reasoning into a procedurally distinct setting. The false information was plainly capable of affecting whether Rule 39 protection was warranted. The Court did not explain, however, why misleading information about the need for temporary protection also made abusive the exercise of the separate right of individual application under Article 34. The decisive relevance of information to the interim measure procedure should not, without further reasoning, determine the fate of complaints whose admissibility and merits that provisional assessment was never capable of resolving.
The intention to mislead must be established with sufficient certainty, since mere suspicion is insufficient. It can be inferred from the circumstances, and two factors weighed heavily against the applicant in Mouelhi. The untrue information was repeated in the application form and maintained after the Court expressly requested updated information, while his representative confirmed that she remained in contact with him. The applicant acknowledged his accommodation in the Netherlands only after the Government produced documentary evidence and did not explain why it had been stated otherwise from the earlier submissions (Mouelhi, paras 27-29).
Representation carries particular weight because lawyers bear a distinct responsibility not to make misleading submissions and are expected, by virtue of their professional experience and legal knowledge, to understand the applicable procedural duties more readily than applicants themselves. The Court accordingly requires representatives to demonstrate ‘a high degree of professional prudence and meaningful cooperation’, to comply meticulously with procedural requirements and to encourage their clients to do the same (Bekauri v. Georgia,paras 22-24; De Cristofaro v. Italy, paras 50-56). It has also been reluctant to accept counsel’s ignorance or communication difficulties where no convincing explanation is offered for the failure to disclose (Gross v. Switzerland, paras 33-37; Taşdemir v. Türkiye, paras 36-45).
Counsel’s involvement in Mouelhi undoubtedly made the continued inaccuracy more serious. Given her professional duties, she should have checked whether the applicant was still living in the streets before repeating that account in the application and in response to the Court’s request for updated information. Her conduct was attributable to the applicant and could accordingly support a finding of abuse. Attribution, however, does not resolve the separate question of whether the misinformation reflected deliberate deception or a serious failure of communication and verification. The applicant’s psychiatric hospitalisation, the prolonged homelessness he alleged having experienced before moving to the Netherlands and his passage between the Belgian and Dutch asylum systems formed part of the facts already present before the Court (Mouelhi, paras 3, 9 and 14-15). The wider context also included the immense and sustained pressure under which Belgian immigration lawyers were, and still are, ploughing through large numbers of domestic cases amidst the reception crisis. In their submissions concerning the execution of Camara v. Belgium, which concerned Belgium’s prolonged failure to execute a domestic judgment ordering reception for an asylum seeker under Article 6(1), Belgian human rights institutions observed that the persistent non-enforcement of such decisions had led many lawyers to see little point in bringing further proceedings, since favourable domestic rulings no longer affected applicants’ positions on the waiting list. Although these circumstances were not expressly relied upon as an explanation, they remained relevant to whether bad faith had been established with sufficient certainty.
The Court’s final reasoning spells out that the applicant was not the only audience it had in mind. His conduct was placed against the ‘massive influx’ of interim measure requests and applications caused by the Belgian reception crisis, whose volume burdened the Court’s ability to properly administer justice and discharge its function under Article 19 while other cases based on established facts also demanded attention (Mouelhi, para 31). Indeed, the numbers are difficult to overstate. Between 31 October 2022 and 30 May 2023 alone, the Court indicated interim measures in favour of 1,710 applicants who had obtained final domestic decisions ordering their accommodation. (Camara v. Belgium, paras 84-85). A large share of those cases soon left the Court’s docket. On 24 May 2023, it lifted the measures in 1,350 cases and struck out the corresponding applications because the applicants had not subsequently submitted completed application forms. Applications nevertheless continued to reach Strasbourg. By 24 January 2025, the Court had cumulatively indicated 2,284 interim measures in Belgian reception cases, although only 30 remained in force at that date. The cumulative figure rose marginally to 2,285 by September 2025. These proceedings formed only the European dimension of a much broader wave of litigation generated by the continuing reception crisis. By January 2025, Fedasil had received 10,407 Labour Court judgments concerning violations of the right to reception, while more than 3,000 people remained on the waiting list for accommodation (M.V. and Others, §§ 63-65).
Seen against that background, the decision serves the Court’s long-term effectiveness, sending a message beyond the disposition of this particular case. For applicants and their lawyers, Mouelhi fires a warning shot. False information supplied during a Rule 39 request, especially when repeated or left uncorrected in the ensuing application, could imperil the entire case rather than only result in refusal or lifting of the measure. For Contracting States, Mouelhi offers an olive branch, showing that the Court will scrutinise the conduct of those seeking its protection as publicly and rigorously as it scrutinises governmental obligations. The accompanying press release strengthened that impression by foregrounding the attempt to mislead, the duties of applicants and representatives and the burden created by comparable Belgian cases.
Especially apparent is the reassurance extended to States when read alongside M.V. and Others v Belgium, delivered only six weeks earlier. In that judgment, the Court found for the first time that Belgium’s failure to provide reception during the current crisis had itself amounted to degrading treatment under Article 3. It also found violations of Article 6(1), because final domestic judgments had not been executed within a reasonable time, and Article 34, because interim measures had not been implemented with sufficient swiftness, while rejecting the scale of the reception crisis as an adequate justification. Mouelhi therefore followed closely upon a judgment in which Belgium had itself been strongly criticised for failures affecting the same urgent protection mechanism.
The wider institutional context is also notable. Belgium was among the nine States whose leaders signed the open letter of 22 May 2025 criticising aspects of the Court’s migration jurisprudence, principally concerning the removal of foreign nationals convicted of serious offences. The Chișinău Declaration of 15 May 2026 similarly emphasised States’ authority over migration, the balance between individual rights and collective interests and the need to preserve confidence in the Convention system. Six days later, the Court publicised Mouelhi, a Belgian migration decision in which inadmissibility was justified by reference to the Court’s credibility, the authority of interim measures and the proper administration of justice.
Lastly, one might ask whether the Court has put the cart before the horse. The burden invoked in Mouelhi was itself largely created by Belgium’s persistent failure to provide reception, execute domestic judgments and comply expeditiously with interim measures (M.V. and Others, paras 134-136). Those failures produced thousands of urgent applications, whose cumulative pressure was then invoked to underline the seriousness of one applicant’s misconduct, even though the respondent State had itself failed to implement the very interim protection whose integrity the Court sought to defend. Protecting Rule 39 from deliberately false claims and preserving the Court’s attention for genuine situations of urgency are legitimate concerns, but the origin of that pressure cannot be disregarded. When repetitive litigation results from sustained State non-compliance, its volume should not readily become an additional justification for imposing the most severe procedural sanction on one of the individuals affected by that very failure.
We could argue that the false account supplied in support of the Rule 39 request did not by itself justify declaring the entire application inadmissible under Article 35(3)(a). The procedural consequence most closely corresponding to that harm was the lifting of the interim measure, since the applicant’s accommodation in the Netherlands meant that the imminent risk on which the request rested no longer existed. If the misinformation resulted from counsel’s failure to verify the applicant’s circumstances rather than deliberate deception by the applicant, that misconduct could have been addressed directly. In Mouelhi, the Court warned the representative that repetition could lead to her exclusion under Rules 36(4) and 44D, although no disciplinary action was imposed (para 30). That warning already signalled to States that the Court would respond to procedural misconduct by applicants’ representatives, making it less clear why rejection of the entire application was also necessary (see, mutatis mutandis, the dissenting opinion of Judge Šimáčková in Y.T. v Bulgaria, para 9).
Once the same account was repeated in the application form and maintained during the subsequent proceedings, those consequences still should not have consisted in the complete rejection of the case. The applicant had been excluded from the Fedasil reception network on 18 August 2022 and obtained accommodation in the Netherlands only on 19 May 2023, after approximately nine months, or 274 days, during which he alleged that he had been left without shelter, food or material assistance. Although the Government’s evidence decisively contradicted his account after 19 May 2023, no evidence was presented to disprove the grave conditions allegedly endured during the preceding period (a distinction that similarly arose in Taşdemir v Türkiye and which I have discussed elsewhere). The Court could have confined its examination on the merits to that period, treated the move to the Netherlands as ending any continuing Article 3 violation, drawn adverse inferences against the applicant when assessing evidence, and reduced any award of just satisfaction. All of these responses would have sent a sufficiently clear message about the seriousness of the misinformation (dissenting opinion of Judge Šimáčková in Y.T., para 7).
Although harsh, Mouelhi is not entirely surprising. It is the latest in a series of rulings through which abuse of the right of individual application has acquired an increasingly elastic reach. Mouelhi carries that development into the evidentially fragile setting of Rule 39, allowing misconduct arising within a preliminary preventive procedure to determine the fate of complaints whose factual basis extends beyond it, even though interim measures and the right of individual application do not share the same legal character or immediate purpose.
Amid the Court’s institutional strain and growing political scrutiny, especially in the precarious field of migration, it is perhaps understandable to see admissibility deployed as a tool of self-preservation. Concern with caseload pressure and the authority of Rule 39 becomes problematic, however, when it contributes to excluding claims generated by persistent State non-compliance. More disturbing still, the approach may invite a new litigation tactic for States already reluctant to heed judicial authority, encouraging them to comb through administrative and cross-border records in search of inconsistencies with which to turn the spotlight away from their own responsibility and onto the applicant’s credibility before the underlying grievance is ever examined on the merits.
The outcome in Mouelhi ultimately reveals the deeper trade-off at stake. By treating the applicant’s misconduct as a ground for disposing of the entire application, the Court made a strategic choice in favour of its long-term effectiveness, protecting its capacity and authority in a context of institutional strain. Yet that choice came at the expense of the effectiveness of individual petition in the case before it. The Court established that the applicant’s later account was false but allowed that finding to shut down any examination of an earlier period of alleged mistreatment which the Government’s evidence did not disprove. The applicant had already been left out in the cold by a reception system that denied him shelter and a State that failed to enforce the domestic judgment meant to secure it. By treating a partial misrepresentation as dispositive of the entire application, Mouelhi leaves him there once more. The case exposes a harder question beneath the Court’s concern for institutional effectiveness: whether the Convention system’s ultimate aim of effective rights protection can truly be secured by preserving the institution in a manner that sacrifices the very mechanism through which individual rights are vindicated.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The blog is run as an inter-university collaboration amongst the Dutch-language universities of Belgium. Associated research groups are the Human Rights Centre at Ghent University, the Centre for Government and Law at Hasselt University, the Leuven Centre for Public Law at KU Leuven, the Law and Development Research Group at the University of Antwerp and the Vakgroep Publiekrecht at the Vrije Universiteit Brussel.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
