CASE OF V.M. AND OTHERS v. BELGIUM

SECOND SECTION

CASE OF V.M. AND OTHERS v. BELGIUM

(Application no. 60125/11)

7 July 2015

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 17/11/2016

This judgment may be subject to editorial revision.

In the case of V.M. and Others v. Belgium,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Işıl Karakaş, President, András Sajó, Nebojša Vučinić, Helen Keller, Paul Lemmens, Egidijus Kūris, Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 9 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 The case originated in an application (no. 60125/11) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Serbian nationals, Mr V.M. and Mrs G.S.M. and their five children, S.M., E.M., S.M., E.M. and E.M.M., the last of whom died on 18 December 2011 (“the applicants”), on 27 September 2011. The President of the Section acceded to the applicants’ request not to have their names disclosed (Rule 47 § 4 of the Rules of Court).

2 The applicants were represented by Ms E. Neraudau, a lawyer practising in Nantes. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department.

3 The applicants alleged in particular that, on account of the reception conditions in Belgium and their “forced” return to Serbia, the Belgian authorities had exposed them to a situation which endangered their lives and physical integrity (Articles 2 and 3 of the Convention). They also complained that they had not had an effective remedy.

4 The application was communicated to the Government on 4 February 2013.

5 The applicants and the respondent Government each filed written observations (Rule 54 § 2). Observations were also received from the non ‑ governmental organisation Coordination et initiatives pour réfugiés et étrangers (“Ciré”), which had been given leave to intervene in the procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 The applicants, Mr V.M. and Mrs G.S.M., and four of their children were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was also an applicant, was born in 2001 and subsequently died on 18 December 2011 after the application had been lodged.

A. The applicants’ movements prior to their arrival in Belgium

7 The applicants are of Roma origin and were born in Serbia, where they spent the greater part of their lives. They explained that they decided to leave their country for Kosovo because of the discrimination and ill ‑ treatment they had suffered on account of their origin in every sphere: access to the employment market, medical care, schooling difficulties and so forth.

8 The eldest daughter of the first two applicants had been physically and mentally disabled since birth and had suffered from epilepsy.

9 After failing to obtain a more secure situation for themselves in Kosovo, in March 2010 the applicants travelled to France, where they lodged an application for asylum. Their application was rejected by a final decision on 4 June 2010.

10 The applicants stated that in the meantime they had returned to Kosovo, and then to Serbia, in May 2010 owing to the precariousness of their situation in France and their inability to provide for their essential needs.

11 In March 2011, as their situation had not changed, the applicants decided to go to Belgium, where they lodged an asylum application on 1 April 2011.

B. “Dublin” procedure in Belgium

12 During their interview with the “Dublin” department of the Aliens Office on 4 April 2011 the applicants gave an account of their movements to date and expressed their fears in the event of a return to Serbia. The first applicant stated that he had chosen to seek asylum in Belgium because he had been told that he could obtain better treatment for his disabled daughter there. He said that he was suffering from psychological problems. The second applicant said that Belgium had been the choice of the smuggler. When asked about her health, she replied that she was six months’ pregnant. She also mentioned their eldest daughter’s health problems.

13 The applicants maintained that they had explained the reasons why they refused to return to France, where they had been living in extremely precarious conditions. They submitted that they had not been asked to provide any evidence of having left the territory of the Member States of the European Union (“EU”) or regarding the family members’ state of health.

14 On 12 April 2011 the Belgian authorities sent France requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of the Member States of the EU for Serbia since their stay in France.

15 On 22 April 2011, relying on Article 16(3) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third ‑ country national (“the Dublin II Regulation”), France refused to take charge of the applicants on the grounds that the couple were considered to have disappeared since May 2010 because they had not collected the notice of final refusal of their asylum application dated 4 June 2010 and this corroborated their statements to the Aliens Office according to which they had left the Schengen Area in 2010 and re-entered it in March 2011, thus leaving for a period of more than three months.

16 On 2 May 2011 the Belgian authorities asked the French authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member States for more than three months since their stay in France and the applicants were clearly aware of the rejection of their asylum application in France.

17 On 6 May 2011 France accepted the request to take the family back pursuant to Article 16(1)(e) of the Dublin II Regulation.

18 On 17 May 2011 the Aliens Office issued decisions refusing the applicants leave to remain and ordering them to leave the country for France on the grounds that under Article 16(1)(e) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that France had agreed to take charge of the family. The decisions indicated among other things that the family, who were originally from Kosovo, “had not furnished evidence of their stay” in Kosovo after staying in France nor any certificates regarding any medical treatment or care in respect of the pregnancy, or concerning the child or the father. Considering that France was a country which respected human rights, had democratic institutions, had ratified the Convention and the Geneva Convention on the Status of Refugees, and was bound to implement the directives of the European Union on asylum and that if a return were to raise a problem under Article 3 of the Convention, the family could always lodge an application with the Court for interim measures, the Aliens Office considered that the Belgian authorities did not have to use the sovereignty clause provided for in Article 3(2) of the Dublin II Regulation.

19 Accordingly, the applicants were ordered to leave the country within seven days and to report to the French authorities at the border crossing. On the same day the applicants were issued with laissez-passer.

20 On 19 May 2011 the applicants, through their legal representative, contacted the Aliens Office for the purposes of providing it with evidence that they had left the territory of the European Union for more than three months (gynaecologist’s certificates, the second applicant’s health card and proof of enrolment at school of one of their children).

21 On 25 May 2011 execution of the orders to leave the country were extended until 25 September 2011 on account of the fact that the second applicant was soon due to give birth.

22 On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board for the decisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution. They argued that the decisions, with the reasons given therein, had not provided them with the examination required by Article 13 taken together with Article 3 of the Convention ( M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 336, ECHR 2011) of their fears regarding a return to Serbia and of their health problems. Firstly, the reasoning was erroneous and incomplete (error as to their nationality, identifying them as Kosovars instead of Serbs, failure to mention their return to Serbia and their Roma origin). Secondly, they could not be blamed for having failed to provide, during their Dublin interview, documents certifying their health problems and their movements to date or for not having substantiated their fears regarding a transfer to France. Like all Dublin asylum-seekers at that time, when they had attended those interviews they had not been assisted by a lawyer or informed of the documents that they should bring and no document had been requested of them. As they had expressed their fears, the Belgian authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights. The applicants also argued that France should not have been determined as the State responsible for examining their asylum applications. Under Article 16(3) of the Dublin II Regulation, the obligations regarding the determination of the State responsible ceased where the third-country national had left the territory of the Member States for at least three months. That was precisely the position the applicants had been in on account of their return to Serbia from May 2010 to March 2011 as certified by the documents subsequently sent to the Aliens Office (see paragraph 20 above). Lastly, they submitted that the Belgian authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vulnerability and of the notoriously difficult situation of the Roma minority in Serbia and of the conditions for the reception of asylum-seekers in France.

23 The hearing before the Aliens Appeals Board took place on 26 August 2011.

24 On 23 September 2011 the applicants unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before the Aliens Appeals Board.

25 On 27 September 2011 the applicants lodged an application with the Court for interim measures suspending their transfer to France pending the outcome of the proceedings before the Aliens Appeals Board.

26 On 28 September 2011 the Court refused to indicate an interim measure.

27 In a judgment of 29 November 2011 the Aliens Appeals Board ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution.

28 The Aliens Appeals Board dismissed the ground of appeal regarding the conditions of reception in France and based on the risk alleged by the applicants of being exposed to treatment contrary to Article 3 of the Convention. It found as follows:

“... the Board cannot but observe that the applicants have failed to show that they encountered difficulties in their dealings with the French authorities regarding access to health care for their child or their conditions of reception as asylum-seekers. They have not adduced so much as a shred of evidence regarding the circumstances of the ill-treatment they have allegedly suffered and have merely asserted in their application, without substantiating this with the slightest evidence that could corroborate the facts, “ that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning” . Moreover, although their daughter’s disability had been specified in the “Dublin form”, the parties have not made any allegation whatsoever before the Aliens Appeals Board of encountering particular difficulties in the reception of asylum-seekers as organised by the relevant French authorities.”

29 The Aliens Appeals Board also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application, which had prevented it from checking whether the extracts produced did actually concern France.

30 The Aliens Appeals Board set the decisions aside, however, on the ground that the Aliens Office had not established the legal basis on which it considered that France was the State responsible for examining the applicants’ asylum application.

31 On 23 December 2011 the Belgian State lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board’s judgment. It disputed the Aliens Appeals Board’s analysis of the applicable legal basis.

32 In an order of 12 January 2012 the Conseil d’État declared the appeal admissible. In a judgment of 28 February 2013 it rejected it for lack of current interest on the grounds that the operative provisions of the Aliens Appeals Board’s judgment were no longer a source of complaint for the applicants because they had returned to Serbia and had left the territory of the Member States for more than three months with the result that Belgium was relieved of any obligation in the process of determining which Member State was responsible for their asylum application.

C. Application for regularisation of residence status on medical grounds

33 In the meantime, on 22 September 2011, the applicants had lodged an application for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”) on behalf of their eldest daughter. They referred to the extreme precariousness of their position and the discrimination they had suffered as Roms in Serbia and Kosovo. Citing several international reports in support of their submissions, they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter’s health condition. They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted in Belgium.

34 On 30 September 2011 the Aliens Office declared their application inadmissible on the grounds that the medical certificate of 26 June 2011 (see paragraph 38 below), produced in support of their application to have their residence status regularised, certified the existence of a medical problem and stipulated the treatment considered necessary but, contrary to the requirements of section 9 ter § 3, 3 o of the Aliens Act, did not specify the degree of seriousness of the condition.

35 The applicants indicated in their observations in reply that they had learnt of the existence of that decision during the proceedings before the Court.

D. Reception in Belgium and medical care

36 On 1 April 2011 the Federal agency for the reception of asylum-seekers (“Fedasil”) assigned the applicants a reception facility as their mandatory place of registration, namely, Morlanwez asylum-seekers’ reception centre.

37 The social worker from the centre took down the following account by the applicants of the conditions of their reception in France:

“The family decided to leave France because they had no means of subsistence. They were living in a night shelter which they had to leave in the day. They and the children were out on the streets from 7 a.m. They had to use a pushchair as a wheelchair for S., who is disabled. They had no information of any kind apart from the status of asylum-seeker which had been given to them on their arrival. No doctor, no social worker, no lawyer, no interpreter. They had absolutely no means of communication. They had no idea what they should do or what to expect. S. was not receiving any medical treatment of any kind. When her health deteriorated and she had to be taken to hospital, it was the mother’s sister who drove her to the emergency ward at the hospital and acted as interpreter. Once at the hospital the little girl had [ epileptic ] fits and her hair fell out. That was what decided the family to return to Serbia”.

38 The eldest daughter was examined on 26 June 2011 by a neuro ‑ psychiatrist at Jolimont-Lobbes Hospital and a medical certificate was drawn up on that day certifying the child’s disabilities.

39 In that certificate, which was sent to the Aliens Office on 1 July 2011, the doctor noted that the child had “cerebral palsy with epilepsy”, suffered from “severe axial and peripheral hypotonia”, that she could not sit up unassisted and soiled her underwear, that she could not talk and appeared not to understand others. He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment (orthopaedic braces, seat-brace). Those medical findings were confirmed by a neurological examination carried out on 1 July 2011.

40 The eldest daughter was admitted to hospital on 7 and 8 July 2011 for her epileptic fits and a neurological report drawn up.

41 After the second applicant gave birth on 26 July 2011 the family were assigned a new reception centre on 5 August 2011 in an open centre suitable for families, in Saint-Trond in the province of Limbourg.

42 On 26 September 2011, when the order extending execution of the order to leave the country expired, and as they could no longer benefit from material assistance for refugees, the applicants were removed from the Saint-Trond reception centre.

43 The applicants travelled to Brussels, where voluntary associations indicated a public square in the municipality of Schaerbeek, in the centre of the Brussels-Capital administrative district, where other homeless Roma families were also staying. They stayed there from 27 September to 5 October 2011.

44 On 29 September 2011, through their legal representative, the applicants asked the French-speaking community’s General Delegate to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum-seekers.

45 On the same day the General Delegate sent a letter to the Director-General of Fedasil requesting that accommodation be found urgently.

46 A signed statement by the General Delegate dated 2 October 2011 indicated that he also contacted the municipality of Schaerbeek in an attempt to find urgent accommodation for the family. According to the General Delegate, the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide, and Fedasil declared that it did not have power on account of the decision taken by the Aliens Office regarding France’s responsibility for processing the asylum request (see paragraph 18 above). Fedasil also stated that the application to the Aliens Appeals Board (see paragraph 22 above) was not of suspensive effect, which was why the reception centre had applied the rules terminating the right to material assistance.

47 On 5 October 2011, following the intervention of the General Delegate, the Secretary of State’s office for Asylum and Migration, Social Integration and the Fight against Poverty instructed Fedasil to designate a reception centre as a matter of urgency.

48 After spending two days at the transit centre of the Woluwe ‑ Saint ‑ Pierre municipality, also in the Brussels-Capital administrative district, on 7 October 2011 the applicants were assigned a new reception centre as a mandatory place of registration: the Bovigny reception centre for asylum-seekers in the province of Luxembourg approximately 160 km from Brussels.

49 The Government maintained that the applicants had failed to register at the centre. The applicants, for their part, stated that they had gone there by train and a special bus but had been sent back to Brussels to Fedasil’s Dispatching Department on the grounds that their “annex 26 quater [order to leave the country] was invalid.”

50 When they got back to Brussels on 7 October 2011 the applicants got off the train at the Brussels Gare du Nord, where they remained without any means of subsistence and with no accommodation despite the very cold weather for nearly three more weeks until their return to Serbia was organised via a charitable organisation as part of the Fedasil return programme. The applicants left Belgium for Serbia on 25 October 2011.

51 In the meantime, on 12 October 2011, the applicants’ mandatory place of residence had been changed to code 207 “no-show” (see paragraph 81 below) and on 25 November 2011 the applicants’ names were deleted from the waiting register.

E. Return to Serbia

52 After their return to Serbia their eldest daughter’s health deteriorated, forcing the applicants to leave the room they had rented on account of the insalubrious conditions. They went to stay with a relative in Novi-Sad and then to the suburbs in Belgrade.

53 The applicants’ eldest daughter was admitted to hospital on 4 December 2011 suffering from a lung infection. She died on 18 December 2011.

54 In a letter to their lawyer of 21 November 2012 the applicants stated that they had been attacked by Serbs on a number of occasions: among other incidents, some men had driven by in a car and broken the windows of their home by throwing stones, and had uttered threats, complaining of their links with the “Belgians” and ordering them to leave Serbia. The first applicant had attempted to defend himself and been beaten up twice by his attackers.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. “Dublin” procedure for determining the responsible State

1 Procedure before the Aliens Office

55 In accordance with the Aliens Act, the Aliens Office is the administrative body which determines the State responsible for examining an asylum application under the Dublin III Regulation (formerly the “Dublin II Regulation”, see paragraphs 100-02, below). The relevant provisions of the Act governing the procedure for determining the responsible State were the same as those described in M.S.S. v. Belgium and Greece , cited above (§§ 129-35).

56 Where another State has agreed to take charge or take back, the Aliens Office will serve a decision on the asylum-seeker refusing leave to remain and ordering him or her to leave the country. It issues a document in accordance with the specimen document appearing in the annex 26 quater of the royal decree of 8 October 1980 on the admission, residence and expulsion of aliens. The Aliens Office indicates which country is responsible for examining the asylum application and issues the asylum-seeker with a laissez-passer to enable him or her to enter the country in question.

2 Appeals to the Aliens Appeals Board

57 Decisions taken by the Aliens Office may be challenged by appealing to the Aliens Appeals Board, which is an administrative court established by the Act of 15 September 2006 reforming the Conseil d’État and setting up an Aliens Appeals Board. The powers, jurisdiction, composition and functioning of the Aliens Appeals Board are governed by the provisions of the Aliens Act as amended by the aforementioned Act of 15 September 2006. The procedure to be followed before the Aliens Appeals Board is governed by a royal decree of 21 December 2006.

58 An application to set aside is not an appeal on questions of both fact and law. The review by the Aliens Appeals Board is a review of the lawfulness of the decision being appealed against.

59 An application to set aside does not suspend enforcement of the measure in question. However, the legislation provides that it may be accompanied by a request for a stay of execution of the measure, either under the extremely urgent procedure, which itself suspends enforcement of the measure, or under the “ordinary” procedure.

60 At the material time applications for a stay of execution were governed by the provisions of section 39/82 of the Aliens Act, which reads as follows:

“1. Where a decision by an administrative authority is subject to an application to set aside under section 39/2, the Board shall have sole jurisdiction to order a stay of execution.

A stay of execution shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned decision of the President of the division hearing the application or the aliens appeals judge whom he or she designates for the purpose.

In cases of extreme urgency a stay of execution may be ordered on an interim basis without evidence having been heard from some or any of the parties.

Applicants who request a stay of execution must opt for either the extremely urgent procedure or the ordinary procedure. They may not, simultaneously or consecutively, either seek a second time to have the third sub-paragraph applied or re-apply for a stay of execution in the application referred to in paragraph 3. Failure to comply may result in the request being declared inadmissible.

By way of derogation from the fourth sub-paragraph and without prejudice to paragraph 3, the rejection of a request for a stay of execution under the extremely urgent procedure shall not prevent the applicant from subsequently requesting a stay of execution under the ordinary procedure, where the application under the extremely urgent procedure was rejected on the grounds that the extreme urgency of the situation was not sufficiently established.

2 A stay of execution may be ordered only if the grounds relied on are sufficiently serious to justify setting aside the impugned decision, and if immediate execution of the decision is likely to cause serious, virtually irreparable harm.

Judgments ordering a stay of execution may be recorded or amended at the request of the parties.

3 Except in cases of extreme urgency, the request for a stay of execution and the application to set aside must be submitted in a single document.

The title of the application should specify whether an application to set aside is being lodged or a request for a stay of execution and an application to set aside. Failure to comply with this formality will result in the application being treated solely as an application for judicial review.

Once the application to set aside has been lodged any subsequent request for a stay of execution shall be inadmissible, without prejudice to the possibility for the applicant to lodge, in the manner referred to above, a fresh application to set aside accompanied by a request for a stay of execution, if the time-limit for appeals has not expired.

The application shall include a statement of the grounds and facts which, in the applicant’s view, justify a stay of execution or an order for interim measures, as applicable.

Any order for a stay of execution or other interim measures issued prior to the lodging of the application to set aside the decision shall be immediately lifted by the Division President who issued it or by the aliens appeals judge designated by him or her, if the judge observes that no application to set aside setting out the grounds for such measures has been lodged within the time-limit specified by the procedural regulations.

4 The Division President or the aliens appeals judge designated by him or her shall rule on the request for a stay of execution within thirty days. If a stay of execution is ordered a ruling shall be given on the application to set aside within four months from delivery of the judicial decision.

If the alien in question is the subject of an expulsion or removal order which is to be enforced imminently, and has not yet lodged a request for a stay of execution, he or she may request a stay of execution of the decision under the extremely urgent procedure. If he or she lodged a request under the extremely urgent procedure in accordance with the present provision no later than five days, but no earlier than three working days, following notification of the decision, the request shall be examined within forty-eight hours of its receipt by the Board. If the Division President or the aliens appeals judge concerned does not give a decision within that time, the First President or the President shall be informed and shall take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. They may even examine the case and take the decision themselves. If no stay of execution is granted the measure shall again become enforceable.

...”

61 If the person concerned opted for the “ordinary” procedure, he or she could request interim measures, possibly as a matter of extreme urgency, in accordance with section 39/84 of the Act.

62 For a request for a stay of execution or for interim measures to be granted as a matter of extreme urgency, the enforcement of the expulsion measure had to be imminent (section 39/82, paragraph 4, second sub ‑ paragraph, and section 39/85, first sub-paragraph, of the Aliens Act). That requirement, inserted by the above-mentioned Act of 15 September 2006, was to be construed in the light of the interpretation of the concept of extreme urgency by the Conseil d’État , in particular in the judgments of the General Assembly of the Administrative Division of 2 March 2005 (nos. 141.510, 141.511 and 141.512):

“[The applicant] must demonstrate that the ordinary procedure for a stay of execution would not be effective in preventing the serious damage alleged, bearing in mind the possibility of lodging a request for interim measures as a matter of extreme urgency during the proceedings ..., the two requests being then examined jointly.

...

It is common ground that, save in exceptional cases where orders to leave the country are accompanied by coercive measures with a view to repatriation, the opposing party does not systematically review their actual enforcement. Accordingly, a mere reference to an order to leave the country that has been issued is not sufficient to demonstrate the existence of extreme urgency.”

63 Following this line of case-law, the Aliens Appeals Board took the view that, for the danger to be imminent, the alien in question had to be subject to a coercive measure aimed at securing his or her departure from the country. In the absence of such a measure, it considered that a situation of extreme urgency had not been established (see, among many other authorities, judgments nos. 456 of 27 June 2007 and 7512 of 20 February 2008).

64 Following the introduction of the present application the Aliens Act was amended by the Procedure before the Aliens Appeals Board and Conseil d’Etat (Miscellaneous Provisions) Act of 10 April 2014.

65 That Act reformed the procedure for applications for a stay of execution as a matter of extreme urgency in order to take account of the lessons drawn from M.S.S. v. Belgium and Greece , cited above, the subsequent case-law of the Aliens Appeals Board (see, among other authorities, the seven judgments of the General Assembly of 17 February 2011, nos. 56.201 to 56.205, 56.207 and 56.208) and judgment no. 1/2014 of 16 January 2014 of the Constitutional Court. In that judgment, which dealt with an application to set aside the Act of 15 March 2012 amending the Aliens Act, which set up an expedited procedure for asylum-seekers from “safe” third countries, the Constitutional Court ruled among other things on whether applications to set aside and requests for a stay of execution under the extremely urgent procedure satisfied the criteria of effectiveness laid down by the Court’s case-law on Article 13 of the Convention taken in conjunction with Article 3 and set aside the Act in question in part.

66 The above-cited provisions, as redrafted, provide that an application for a stay of execution under the extremely urgent procedure must be lodged within ten days, or five if the removal order in question is not the first to have been issued against the person concerned. The conditions for extreme urgency to be made out remain identical. Removal must be imminent, which mainly concerns detainees (see paragraphs 62 ‑ 63 above). However, the Act does not preclude the possibility that other circumstances may justify use of the extremely urgent procedure. The reform also provides that there is a presumed risk of serious and irreversible harm if the violation alleged concerns a right from which no derogation is possible, such as Articles 2, 3 or 4 of the Convention.

B. Procedure for seeking leave to remain on medical grounds

67 Section 9 ter of the Aliens Act provides for the possibility of applying for leave to remain on medical grounds. At the material time the relevant parts of this provision provided:

“1. Aliens resident in Belgium who provide proof of identity in accordance with paragraph 2 and who are suffering from an illness entailing a real risk to their life or well-being or a real risk of inhuman or degrading treatment if no suitable treatment exists in their country of origin or country of residence may apply to the Minister or his or her representative for leave to remain in the Kingdom.

The request must be made by registered letter to the Minister or his or her representative and must include the actual address of the individual concerned in Belgium.

The alien concerned must submit the request together with all the relevant information concerning his or her illness and the availability and accessibility of suitable treatment in the country of origin or the country of residence.

The alien concerned shall submit a standard medical certificate as provided for by royal decree approved by the Cabinet. The medical certificate shall indicate the illness, its degree of seriousness and the treatment considered necessary. ...”

68 The procedure for examining the application for leave to remain involves two stages. First, the Aliens Office examines the admissibility of the application, particularly the information that must appear on the medical certificate (indication of the illness, its degree of seriousness and the treatment considered necessary). In that connection the Aliens Appeals Board has explained that “the intention [of the legislature] to clarify the procedure would be undermined if the Aliens Office were required to carry out a detailed examination of any medical certificate produced and attached documents, in order to ascertain the nature of the illness, its degree of seriousness or the treatment considered necessary, whilst the [official in question] is neither a medical officer nor other designated doctor” (see, in particular, Aliens Appeals Board, no. 69.508, judgment of 28 October 2011).

69. The second stage, which concerns only applications that are considered admissible, consists in an examination on the merits of the criteria set out in the Act by the Aliens Office on the basis of an opinion given by a medical officer or other designated doctor.

70 An application may be lodged with the Aliens Appeals Board to have a decision taken by the Aliens Office on the basis of section 9 ter (see paragraphs 57-58, above) set aside.

C. Reception of asylum-seekers

1 Public Social Welfare Offices Institutional Act of 8 July 1976

71 The general principle, established by section 57 § 1 er of the Public Social Welfare Offices Institutional Act of 8 July 1976, is that anyone and any family is entitled to social support in the most appropriate form. This is provided by public social welfare offices established throughout Belgium and administered by the municipalities.

72 The law provides for a derogation from this general principle with regard to foreign nationals illegally resident in Belgium. Section 57 § 2 1 o of the Institutional Act provides, by way of derogation from section 57 § 1, that the mission of the social welfare offices is limited to granting urgent medical assistance to that category of persons where the social welfare office has established that they are in need.

73 In the case of families with children illegally resident in Belgium and whose state of need has been established by the social welfare office (section 57 § 2, 2 o ), social support is limited to the material assistance necessary for the child’s development. It is granted exclusively in a reception centre run by Fedasil as provided for in section 60 of the “Reception” Act (see paragraph 86 below).

74 The Royal Decree of 24 June 2004 setting out the terms and conditions for granting material assistance to foreign minors illegally resident with their parents in the Kingdom provides that in order to obtain this assistance an application must be made by the minor or by the family on his or her behalf to the social welfare office for his or her habitual residence. The social welfare office then carries out enquiries to check that all the statutory conditions are satisfied and makes its decision no later than one month following receipt of the application. Where the conditions are satisfied and the persons concerned undertake in writing to accept the proposed accommodation, the social welfare office informs the applicants that they can obtain material assistance in a reception centre. The applicants must then report to the Dispatching Department of Fedasil (see paragraph 79 below).

2 The “Reception” Act of 12 January 2007

75 The reception of asylum-seekers is governed by the Reception of Asylum-seekers and other Categories of Foreign Nationals Act of 12 January 2007 (“the Reception Act”) which transposes Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers in the Member States.

a) Material assistance

76 Asylum seekers and members of their family who have entered the Kingdom without satisfying the conditions for leave to remain and who lodge an asylum application with the Aliens Office have a right to reception, namely, material assistance enabling them to lead a life in keeping with human dignity (section 1 of the “Reception” Act).

77 Material assistance includes accommodation; meals; clothing; medical, social and psychological care; a daily allowance; and access to legal aid and services such as interpreting and training (sections 16 to 35 of the “Reception” Act).

78 In all decisions concerning minors, the child’s interests are paramount (section 37 of the “Reception” Act).

b) Mandatory place of registration

79 Material assistance is granted by the reception facility or by the social welfare office designated by Fedasil as the “mandatory place of registration” (sections 9 and 10 of the “Reception” Act). Specifically, foreign nationals who have lodged an asylum application must go to the Dispatching Department of Fedasil located in the same building as the Aliens Office to request material assistance and be assigned a reception facility.

80 All persons who have lodged an asylum application are recorded in a special register – the waiting register – which also records their place of mandatory registration under the code 207.

81 Persons assigned a reception facility must reside in the designated facility in order to receive material assistance. If they do not reside there the words “no show” will be filled in under code 207 and the rights of the persons concerned will be limited to urgent medical assistance pursuant to section 57 § 2 of the Public Social Welfare Offices Institutional Act of 8 July 1976 (see paragraph 72 above).

82 In judgment no. 80/1999 of 30 June 1999 the Administrative Jurisdiction and Procedure Court (now the Constitutional Court) observed that section 57 § 2 could not be construed as applying to foreign nationals who, for medical reasons, were totally unable to comply with an order to leave Belgium and that a contrary interpretation would be discriminatory.

c) Duration of material assistance

83 An asylum-seeker is eligible for material assistance from the time of lodging his or her asylum application and that eligibility is effective throughout the asylum proceedings. Where the application for asylum is unsuccessful, material assistance will cease when the time-limit for complying with the order to leave the territory served on the asylum-seeker has expired. An appeal on points of law to the Conseil d’État will not trigger a right to material assistance unless the appeal is declared admissible (section 6 of the “Reception” Act).

84 Àt the time of the events in the present case Fedasil had interpreted this provision to mean that reception facilities to asylum-seekers under the Dublin procedure were in principle suspended on the expiry of the time-limit for complying with an order to leave the country issued in accordance with the specimen form provided in the annex 26 quater , from which time the persons concerned were regarded as illegally resident in Belgium. In line with its previous practice, Fedasil’s instructions of 13 July 2012 relating to the cessation of material assistance were as follows:

“An asylum-seeker ... who is served with an annex 26 quater may lodge an application to have the decision set aside and a stay of execution ... with the Aliens Appeals Board but such applications do not have suspensive effect and accordingly do not give him or her further entitlement to material assistance.”

85 Material assistance may be extended in certain situations listed in section 7 §§ 1 er and 2 of the “Reception” Act, on condition that the asylum proceedings have ended with a rejection of the application and are not the subject of a decision designating a State other than Belgium as responsible for processing the asylum application. Section 7 § 3 in fine provides that in special circumstances relating to respect for human dignity Fedasil may derogate from the conditions stipulated in section 7.

86 Furthermore, under section 60 of the “Reception” Act, in respect of minors illegally resident with their parents on Belgian territory and whose state of need has been established by a social welfare office (see paragraph 73 above), Fedasil must continue to provide material assistance in the reception facilities run by the agency.

d) Medical care

87 Beneficiaries of reception facilities are entitled to medical care necessary to lead a life in keeping with human dignity (section 23 of the “Reception” Act). This right extends to asylum-seekers who are not resident in the reception facility assigned to them (section 25 § 4).

3 Appeals

88 In accordance with Article 580, 8 o of the Judicature Code, disputes relating to the application of the Public Social Welfare Offices Institutional Act and the “Reception” Act are heard by the relevant employment tribunal. Accordingly, an appeal may be lodged with the employment tribunal against a decision – or even the absence of a decision – by a social welfare office or by Fedasil.

89 Pursuant to Article 628, 14 o of the Judicature Code, the court of the appellant’s domicile, last place of residence or, failing that, the place of his or her last occupation in Belgium has jurisdiction to hear the dispute.

90 An appeal can be lodged in accordance with the relevant provisions of the Judicature Code, either in ordinary proceedings (writ of summons) or exceptional proceedings, that is to say, in urgent cases, in urgent proceedings by writ served by bailiff or, in cases of absolute necessity, ex parte application. In the latter cases the applicant must provide reasons for the urgency or absolute necessity and explain why the procedure by simple writ of summons does not offer a sufficiently rapid solution.

91 If appropriate, the employment tribunal may impose a penalty in addition to an injunction. The injunctions are served on the social welfare office or on Fedasil by a bailiff. According to common practice, the asylum-seeker is subsequently summoned to be assigned a reception facility.

4 The “reception crisis”

92 Between 2008 and 2013, and in particular in 2011, the reception system for asylum-seekers in Belgium reached “crisis” point on account of a substantial and exceptional increase in the number of asylum-seekers and persistent saturation of the reception network run by Fedasil.

93 In response to the saturation of the reception network, interpreted as a case of force majeure , Fedasil gave instructions, from April 2009, to no longer provide reception facilities to illegally resident families whose precarious situation had been established by a social welfare office (see paragraph 73 above), as such families were not considered a priority compared with asylum-seekers and were not registered on a waiting list. An exception was made in the event of an injunction, served by a bailiff, by the employment tribunals to provide reception facilities to these families together with a penalty for non-compliance (Fedasil’s Annual Report of 2010) or, from July 2011, in the event of intervention by the federal mediators. The instructions were extended in April 2010 to applications for an extension of medical assistance lodged by persons having received an “annex 26 quater ”.

94 The Brussels social welfare office, one of the social welfare offices facing the highest demand, gave instructions in an internal note, from April 2009, to refuse to examine applications by illegal residents and to redirect these to the Dispatching Department of Fedasil.

95 The employment tribunals gave differing decisions regarding the question whether the social welfare offices or Fedasil should be ordered to provide assistance to illegally resident families. Some courts found against the social welfare offices (for example the Liège Employment Tribunal in a judgment of 7 January 2010) on the grounds that Fedasil could rely on force majeure (saturation of the network) for failing to grant material assistance. The social welfare offices were then obliged to provide assistance. In a situation of that kind the exception provided for in section 57 § 2 of the 8 July 1976 Act (see paragraph 73 above) could not apply and reference had to be made to the general rule in paragraph 1er of that provision, with the social welfare offices accordingly entitled to claim reimbursement of the expenses from Fedasil or the Federal State. Other courts found against Fedasil on the grounds that it could not be a case of force majeure because the situation was foreseeable. The federal authority to which Fedasil belonged was obliged to provide the means necessary “[for the] proper functioning [of Fedasil]” (see, for example, Brussels Employment Tribunal, judgment of 14 May 2009).

96 The saturation of the reception network also caused major procedural difficulties. The employment tribunals differed in their practice regarding the correct avenue for appealing against decisions by Fedasil and the social welfare offices. Whilst some accepted applications lodged ex parte , others, such as those belonging to the Brussels judicial district (which was the applicants’ district), refused illegally resident families the use of ex parte applications (see, for example, Brussels Employment Tribunal, 16 February 2011). Next, on account of the unmanageably high number of applications lodged with the Brussels courts (which had jurisdiction because foreign nationals no longer entitled to reception facilities had elected domicile at the Aliens Office in Brussels), the President of the Brussels Employment Tribunal could take more than ten days to deliver an emergency order (see, for example, Brussels Employment Tribunal, 6 June 2011). Lastly, execution of the orders against Fedasil or a social welfare office could take up to between four and six weeks after service.

D. Detention of illegally resident families with children

97 At the material time the Aliens Act allowed families with children whose residence had ceased to be lawful or had become unlawful to be placed in a closed facility.

98 However, in practice, since 1 October 2008 illegally resident families with children have no longer been placed in detention and open reception facilities have been made available to them pending enforcement of the removal measure.

99 The principle of non-detention of illegally resident families with children was legally enshrined by the Act of 16 November 2011 inserting section 74/9 into the Aliens Act.

III. RELEVANT DOCUMENTS OF INTERNATIONAL AND NATIONAL COURTS

A. European Union law

1 Dublin Regulation

100 At the material time the “Dublin” procedure was governed by Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“Dublin II Regulation”).

101 The main relevant provisions of the Dublin II Regulation are set out in M.S.S. v. Belgium and Greece , cited above (§§ 65-76). Article 16(1) of that Regulation also provides that the Member State responsible for examining an asylum application under the Regulation must take back, firstly, an applicant whose application is under examination and who is in the territory of another Member State without permission (Article 16(1)(c)) and, secondly, a third ‑ country national whose application it has rejected and who is in the territory of another Member State without permission (Article 16 § 1 e)). The obligations specified in paragraph 1 cease where the third ‑ country national has left the territory of the Member States for at least three months (Article 16(3)).

102 The Dublin II Regulation was recast by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, known as the “Dublin III Regulation”. The main lines of the recast are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 35-36, ECHR 2014 (extracts).

2 Reception Directive

103 Council Directive No 2003/9 of 27 January 2003 laying down minimum standards for the reception of asylum-seekers in the Member States (“the Reception Directive”) provides that the States must guarantee asylum-seekers

– certain material reception conditions, including housing, food and clothing, in kind or in the form of financial allowances; the allowances must be sufficient to protect the asylum-seeker from extreme need;

– arrangements to maintain family unity;

– medical and psychological care;

– access for minors to the education system, and to language classes where necessary for them to undergo normal schooling.

104 The Reception Directive was recast by Directive No 2013/33 of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, with a view to guaranteeing a common European system for the physical reception conditions and fundamental rights of asylum-seekers, and ensuring that the administrative detention of asylum-seekers is used only as a last resort.

105 In Cimade and Gisti (C-179/11, judgment of 27 September 2012), the Court of Justice of the European Union (“CJEU”) specified that a Member State in receipt of an application for asylum was obliged to grant the minimum conditions for reception of asylum-seekers laid down in the Reception Directive even to an asylum-seeker in respect of whom it decided, under the Dublin II Regulation, to call upon another Member State, as the Member State responsible for examining his application for asylum, to take charge of or take back that applicant (§ 50). That obligation ceased only when that applicant had actually been transferred by the requesting Member State (§ 58).

106 In the case of Federaal agentschap voor de opvang van asielzoekers v. Selver Saciri, Sanijela Dordevic, Danjel Saciri et Sanela Saciri (C-79/13, judgment of 27 February 2014), a request for a preliminary ruling was made to the CJEU by the Brussels Employment Tribunal concerning the arrangements for providing the physical reception conditions. Basing its answer on the text of the Reception Directive and its scheme and purpose and stressing the importance of respect for fundamental rights, in particular respect for human dignity, the CJEU said that the asylum-seeker could not be deprived – even temporarily after an asylum application had been lodged and before being actually transferred to the responsible Member State – of the protection of the minimum standards laid down by that directive (§ 35). With regard to the level of the physical reception conditions, the CJEU said that this must be sufficient to ensure a dignified standard of living and adequate for the health of applicants and capable of ensuring their subsistence (§ 40). Furthermore, the Member States were required to adjust the reception conditions to the situation of persons having specific needs. The financial allowances also had to be sufficient to preserve family unity and the best interests of the child (§ 41). The CJEU specified that where a Member State provided these conditions in the form of financial allowances, those allowances had to be sufficient to enable them to obtain housing, if necessary, on the private rental market (§ 42). Where families were concerned, those allowances had to enable minor children of asylum-seekers to be housed with their parents (§ 45).

3 Return Directive

107 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Return Directive”) governs removal and placement in detention where necessary and provides for procedural guarantees.

B. The European Social Charter

108 Belgium ratified the European Social Charter on 16 October 1990 and the revised European Social Charter (“the revised Charter”) on 2 March 2004. It accepted Article 17 of the revised Charter which is worded as follows:

“With a view to ensuring the effective exercise of the right of children and young persons to grow up in an environment which encourages the full development of their personality and of their physical and mental capacities, the Parties undertake, either directly or in co-operation with public and private organisations, to take all appropriate and necessary measures designed:

1 a. to ensure that children and young persons, taking account of the rights and duties of their parents, have the care, the assistance, the education and the training they need, in particular by providing for the establishment or maintenance of institutions and services sufficient and adequate for this purpose;

b. to protect children and young persons against negligence, violence or exploitation;

c. to provide protection and special aid from the state for children and young persons temporarily or definitively deprived of their family’s support;

2 ..”

109 The European Committee of Social Rights (“ECSR”) ruled on Belgium’s compliance with its obligations under Article 17 of the revised Charter regarding the reception conditions of unlawfully present unaccompanied and accompanied foreign minors in the decision of 23 October 2012, Defence for Children International (DCI) v . Belgium , complaint no. 69/2011. The relevant extracts of the decision read as follows:

“56. According to the DCI, however, because of the saturation of the reception network, FEDASIL has since 2009 been refusing to take in illegally resident families, as they are not prioritises as compared with asylum-seekers and are not registered on any waiting list. As a result of this situation, many families are forced to live in the street with their children. The public social welfare centres, which are competent at the municipal level, have also refused to intervene, referring the responsibilities to FEDASIL. The only legal possibility involves lodging a judicial appeal with the Labour Court in order to force FEDASIL to accommodate them. According to the organisation, 1773 illegally resident families had still not been granted accommodation on 30 September 2010.

57 The DCI also alleges a targeted refusal to accommodate these families, such refusal being systematic even when the network is not saturated. ...

...

82 [The] Committee considers that the fact that the Government has, since 2009, no longer guaranteed accompanied foreign minors unlawfully present in the country any form of accommodation in reception centres (through either through the FEDASIL network or other alternative solutions) breaches Article 17§1 of the Charter. The persistent failure to accommodate these minors shows, in particular, that the Government has not taken the necessary and appropriate measures to guarantee the minors in question the care and assistance they need and to protect them from negligence, violence or exploitation, thereby posing a serious threat to the enjoyment of their most basic rights, such as the rights to life, to psychological and physical integrity and to respect for human dignity. Similarly, the fact that at least 461 unaccompanied foreign minors were not accommodated in 2011 and the problems posed by inappropriate accommodation in hotels lead the Committee to the conclusion that the Government failed to take sufficient measures to guarantee non-asylum seeking, unaccompanied foreign minors the care and assistance they need, thereby exposing a large number of children and young persons to serious risks for their lives and health.

83 Consequently, the Committee holds that there is a violation of Article 17§1 of the Charter.”

IV. SITUATION OF THE ROM MINORITY IN SERBIA

110 The European Commission against Racism and Intolerance (“ECRI”) made the following findings in a report on Serbia (fourth monitoring cycle, CRI(2011)21), published in May 2011:

“62. NGOs estimate that two-thirds of the Roma population continue to live in informal settlements lacking schools, medical care, water, electricity and sewage facilities. These settlements are overpopulated and are at a great distance from basic facilities and services. In addition, the majority of Roma who live in these settlements do not have the relevant ownership documentation for their homes or land, thus compounding their housing problems. There are Roma settlements in all parts of Serbia with the majority being in Belgrade and in other larger cities and municipalities. The improvement of the living conditions in the settlements is one of the stated goals of the Strategy for Improvement of the Status of Roma and ECRI therefore hopes that the necessary resources will be allocated to measures taken to that end.

63. ECRI notes with concern that there is strong public opinion against relocating Roma. One specific problem is that when the Serbian authorities propose that Roma will be relocated to appropriate housing, the local population protests and refuses to agree to a Roma population moving into their neighbourhood. It thus appears that measures are still necessary to combat the intolerance and racism faced by Roma in the housing sector.

64 ECRI notes with concern that there have been many forcible evictions of Roma in and around Belgrade since its first report ... .

...

69 ECRI notes with concern that in many respects, the hygienic and sanitary conditions in many Roma settlements have not improved since ECRI’s first report. The health situation of Roma, in particular Roma women, children and elderly is particularly alarming and there is a difficulty in access to health care in the absence of the necessary medical registration. The mortality rate of Roma children in Serbia is four times higher than that of the general population.”

111 In its concluding observations on the initial report of Serbia (CERD/C/SRB/CO/1; 78th session, 14 February-11 March 2011), the Committee on the Elimination of Racial Discrimination expressed the following concerns and made the following recommendations:

“14. The Committee is concerned that the Roma population, in many cases, lives in segregated settlements and experiences discrimination in respect of adequate housing and, in particular, is often subject to forced eviction with no provision of alternative housing, legal remedies, or compensation for damage and destruction of personal property. While noting with interest the Law on Social Housing, the Committee expresses concern about the particular difficulties faced by the Roma when applying for social housing programmes, resulting in a perpetuation of discrimination (arts. 2, 3, 5 (e) (iii) and 6 ).

The Committee urges the State party to ensure that any resettlements do not involve further forced evictions and that procedural protections which respect due process and human dignity be put in place. It recommends that the State party strengthen the measures aimed at improving the housing conditions of the Roma, and in this regard, recommends that it accelerate the implementation of the National Plan for Housing of Roma adopted in 2009. In light of the Committee’s general recommendations 27, paragraphs 30-31 (2000), on discrimination against Roma, and 32 (2009) on the meaning and scope of special measures, it also recommends that the State party intensify efforts to avoid residential segregation of minorities and encourages it to consider developing social housing programmes for the Roma.

15 The Committee expresses its concern that members of the Roma minority continue to experience segregation with regard to access to education. It is also concerned by the fact that Roma children returnees, upon readmission agreements from Western European countries, face additional difficulties in entering the Serbian educational system, due to inter alia enrolment and placement procedures (art. 3 and 5 (e) (v)).

Bearing in mind its general recommendations 27, paragraphs 17-26 (2000) on discrimination against Roma, 32 on the meaning and scope of special measures, the Committee strongly urges the State party to address de facto public school segregation, and carry out the necessary measures to facilitate access to quality education including through anti-discrimination training for school staff and awareness-raising for parents, increasing the number of Roma teaching assistants, preventing de facto segregation of Roma pupils, and other measures for the promotion of inclusive education. It also encourages the State party to develop specialized and appropriate procedures for the reception, assessment and placement of children returnees and to increase the awareness of school teachers of the importance of such procedures.

16 While noting with appreciation the efforts taken by the State party to improve the situation of Roma, Ashkali and Egyptians and to prevent and combat racial discrimination against persons belonging to these groups, the Committee is concerned that they are subject to discrimination, prejudice, and stereotyping, in particular in access to employment, health care services, political participation and access to public places (Article 2, paragraph 2, and Article 5 of the Convention).

Bearing in mind its general recommendations No. 27 (2000) on discrimination against Roma and No. 32 (2009) on the meaning and scope of special measures, the Committee encourages the State party to intensify its efforts to prevent and combat racial discrimination against Roma, Ashkali and Egyptians. It recommends that the State party ensure effective implementation of policies aimed at the equal enjoyment by Roma, Ashkali and Egyptians of the rights and freedoms listed in article 5 and special measures to advance their effective equality in employment in public institutions and adequate political representation at all levels. The Committee also encourages the State party to actively carry out campaigns that raise awareness of the difficult position of these groups, in particular the Roma, and build solidarity.”

112 In his report published on 22 September 2011 following his visit to Serbia from 12 to 15 June 2011 (CommDH(2011)29), the Commissioner for Human Rights of the Council of Europe made the following findings and expressed the following concerns:

“3. Human rights of Roma

82 In the 2002 census 108.193 persons, approximately 1.44% of the total population, identified themselves as Roma. The actual number is deemed to be much higher. According to the Serbian government’s estimates the actual number of Roma ranges from 250 000 to 500 000.

...

85 Notwithstanding the government’s efforts to improve the human rights of Roma, the problems facing Roma remain some of the most serious human rights challenges. The Commissioner underlines that the Roma-related projects must be accompanied by resolute efforts to combat prejudice and deep-seated stereotypes against Roma. Efforts are necessary to raise awareness among the Roma population on available mechanisms to combat discrimination. In this context, the Commissioner welcomes the Equality Commissioner’s activities organised in Roma settlements which aim to raise their awareness about the work of her office.

...

3.a. Access of Roma to health care

...

89 Despite the progress made in the area of health care, Roma still face barriers due to lack of information, lack of personal identity documents and poverty. The 2005 Law on Health Insurance aims to enhance access of Roma to health care, as well as to improve their living conditions. This law provides for the right to health care for members of vulnerable groups, including Roma.

90 In 2011 ECRI noted with concern that in many respects, the hygienic and sanitary conditions in many Roma settlements have not improved since ECRI’s first report in 2008. The health situation of Roma, in particular Roma women, children and elderly persons is particularly alarming due to the absence of necessary medical registration. According to UNICEF, although the official estimates show a decrease in Roma child mortality rates since 2005, this rate is still at least four times higher than the national average.

3.b. Access of Roma to quality education

...

94 However, it is estimated that the number of Roma children attending pre-school education is between 4% and 7%, while 66% of Roma children (as opposed to 94% of the total population) enrol in primary school. According to the Ministry of Education only 16% of Roma enrol in secondary schools, and less than 1% of young Roma attend college or university.

...

96 The Commissioner is seriously concerned by the fact that the number of Roma children enrolled in schools for children with mild mental disabilities increased from 26.7% in 2002/2003 to 31% in 2008/2009.

97 In 2011 ECRI expressed concerns that Roma children still face hidden and overt forms of discrimination by school authorities, school staff, teachers, other children and non-Roma parents. Reportedly, as teachers have lower expectations of Roma pupils, there is a tendency to use lower criteria when assessing their performance. The Commissioner is concerned by reports indicating that due to the increase in Roma children attending schools, there is a tendency among non-Roma parents to transfer their children to other schools with fewer Roma children.

...

3.c. Access of Roma to employment

99 ECRI reported in 2011 that Roma in Serbia continue to suffer from a high unemployment rate, low economic activity and almost total exclusion from the public sector. There are almost no Roma in public and state-owned companies, indicating a pattern of discrimination. There are cases where Roma who present themselves for job interviews are informed that the position has been filled, and a few cases of discriminatory job advertising. The majority of Roma are outside the employment system, employed illegally and mostly registered as unemployed.

3.d. Access by Roma to adequate housing

100 The majority of Roma in Serbia live in very poor housing conditions. The problems that Roma face in this field are related to the overpopulation of settlements due to the small number of available housing units, unresolved property issues and illegal constructions, and lack of access to public infrastructures. Some studies have indicated that out of the 593 existing Roma settlements in Serbia, 72% have not been legalised, while in Belgrade alone there are 137 informal settlements.

...

102 The Commissioner has noted with concern reports on the increased number of forced evictions of Roma from informal settlements in Belgrade. He is particularly concerned by the reported failure by the authorities to comply with legal safeguards during evictions. Physical attacks by state officials during evictions and destruction of personal property without compensation have also been reported in various cases such as the one concerning the evictions in the informal Roma settlement Gazela, Belgrade, on 31 August 2009. Following these evictions 114 Roma families were provided with accommodation in metal containers in settlements scattered around the outskirts of Belgrade.

...

106 The Commissioner is particularly concerned by the housing situation of the Roma displaced from Kosovo, and Roma who are being forcibly returned from Western European countries. Reportedly they make up around 17% of the Roma populations in informal settlements. They face the harshest living conditions. Their difficult situation is aggravated by the lack of personal identity documents (see also below, sub-section on lack of birth registration and personal identification documents among Roma). Prospects for their local integration are generally bleak.

107 The Commissioner noted that the living conditions in the informal Roma settlement in Marija Bursać, Blok 61, Belgrade, which he visited on 14 June, are clearly sub-standard and may be qualified as degrading. The settlement hosts approximately forty Roma families and consists of wooden barracks, some of which have been severely damaged due to bad weather. The settlement is not connected to the public utilities system and there are no electricity, water and sanitary facilities. Parents told the Commissioner that because of these living conditions sending children to school is a very difficult task. The Commissioner saw children from the settlement washing their faces with dirty water from a nearby polluted stream. The presence of rats was also reported by inhabitants. On the positive side, the Commissioner has noted that almost all of the inhabitants had obtained personal identity documents through the UNHCR’s EU-funded Roma Inclusion Project.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (RECEPTION CONDITIONS)

113 The applicants complained that their exclusion from reception facilities from 26 September 2011 onwards had exposed them to a life ‑ threatening situation and to inhuman and degrading treatment. They relied on Article 3 of the Convention, which provides:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

114 The Government raised an objection based on non-exhaustion of domestic remedies. They submitted that the applicants should have relied on other provisions of the “Reception” Act and contacted the social welfare office having territorial jurisdiction. In the event of a refusal, an appeal lay to the relevant employment tribunal.

115 The applicants submitted that they had been victims of a general problem related to the saturation of the reception network and that they had attempted – unsuccessfully – to use the only remedies available to them to prevent themselves from being removed from the reception centre and to find accommodation urgently.

116 In the Court’s view, the questions raised by the Government’s preliminary objection partly overlap with those that it will have to consider when examining the merits of the complaints under Article 3 of the Convention. The objection shall accordingly be examined together with the merits of those complaints and examined in this context.

117 The Court also notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1 The parties’ submissions

a) The applicants

118 Relying on Article 3 of the Convention, the applicants complained that their exclusion from the reception facilities from 26 September 2011 onwards had exposed them to a life-threatening situation and inhuman treatment. They explained that the situation had arisen as a result of a particularity of Belgian law which was to terminate material assistance for Dublin asylum-seekers on the date of expiry of the time-limit for complying with an order to leave the country (“annex 26 quater ”) without waiting for the conclusion of the asylum proceedings. Added to that was the fact that the appeal they had lodged against that decision had not been of suspensive effect, thus depriving them of any possibility of applying for a stay of execution of the order to leave the country. They had thus found themselves “illegally resident” within the meaning of Belgian law whereas they had still been asylum-seekers awaiting a final decision regarding their application.

119 They submitted that in addition to an application to set aside and obtain a stay of execution of the “annex 26 quater ”, they had instructed the social worker from the centre and their legal representative to use all the domestic remedies which, having regard to their status as “illegally resident” had been available to them to prevent their removal from the reception centre or to find a solution with regard to accommodation: two applications to extend the order to leave the country; multiple and reasoned requests to the Aliens Office; an application for leave to remain on medical grounds pursuant to section 9 ter of the Aliens Act; and an application to the Aliens Appeals Board to process their case as a matter of priority. Every time they had produced all the evidence in their possession to establish their vulnerability. The authorities had failed to react, however, despite the urgent need to find a solution.

120 After their removal from the accommodation centre, not speaking the languages of the country and having no means of subsistence, they had first roamed the streets before being directed to a public square in the centre of Brussels occupied by other homeless members of the Roma minority of Serbia. They spent eight days there, from 27 September to 5 October 2011, until their legal representative’s efforts to contact the General Delegate to the Rights of the Child resulted in their finding accommodation on 5 October 2011 for two days in a transit centre, also in the Brussels-Capital district, and then space in the open centre of Bovigny. However, when they went there the accommodation was refused them on the grounds that their order to leave the country “was not valid”. When they got back to Brussels the applicants disembarked at the Gare du Nord where a Roma woman directed them to a charitable organisation. It was there that they learnt that their return could be taken charge of in the context of Fedasil’s “voluntary” programme, which they accepted out of desperation, failing any other solution in Belgium and despite the pending appeals. The applicants also explained that they had had to stay at the Gare du Nord for a week, while their departure was organised for 25 October.

121 The applicants submitted that the other possibilities of obtaining the assistance referred to by the Government (see paragraph 125 below) were all bound to fail because of the rejection of their application by the Brussels social welfare office, which was the office having territorial jurisdiction, and the policy implemented by Fedasil since 2009 of refusing to take charge of families in their situation because the reception network was saturated. Furthermore, contrary to the Government’s assertions, they had not satisfied the conditions for requesting an extension under section 7 of the “Reception” Act because their asylum proceedings had not yet terminated and Fedasil had given instructions back in April 2010 to refuse application of the mechanism for extending reception arrangements for foreign nationals who had received an “annex 26 quater” and illegally resident families with minor children. With regard to the emergency medical assistance incumbent on Fedasil to provide, the applicants observed that it was reserved by law and practice to persons currently seeking asylum and was not granted to persons illegally resident in the country. The same was true of the emergency medical assistance that Brussels social welfare office refused to grant to illegally resident foreign nationals. The applicants pointed out that this analysis of the situation was supported by the signed statement of the General Delegate to the Rights of the Child which attested to the failure of his attempts to find a solution by contacting the social welfare office and Fedasil. The applicants also submitted that appeals to the employment tribunals on the subject of reception facilities did not provide the guarantees of effectiveness required by the urgent situation in which they had found themselves.

122 The applicants submitted that the situation they had experienced had been contrary to Article 3 of the Convention as interpreted by the Court in M.S.S. v. Belgium and Greece , cited above (§ 263). The state of extreme poverty and material and psychological want in which the authorities had placed them, in full knowledge of their vulnerability as asylum-seekers and as a family with young children including a severely disabled young daughter, had reached the threshold required by Article 3. The obligation to provide for the applicants’ basic needs as asylum-seekers had also been one of the positive obligations of the Belgian State under European law and more particularly the Reception Directive, which provided that Dublin asylum-seekers had to continue being provided with reception facilities until they were actually transferred to the responsible State, as had been confirmed by the CJEU in Cimade and Gisti , cited above (§ 58) (see paragraph 105 above), and the revised European Social Charter (see paragraphs 108-09 above).

123 The applicants submitted that the Belgian authorities had not appreciated the inevitably harmful consequences for the children and had failed to give precedence to their best interests, whereas they should have acted on the presumption that the children were vulnerable both on account of their status as children and their personal background.

b) The Government

124 The Government submitted that the reception facilities made available to the applicants had been adapted to their situation. From the date on which they had lodged their asylum application, on 1 April 2011, they had been given a place in a reception centre where their basic needs had been met in accordance with the “Reception” Act. Moreover, whilst the order to leave the country, which had been issued on 26 May 2011, should have put an end to the material assistance, the Belgian authorities had decided to extend the reception facilities in a suitable reception centre on account of the second applicant’s pregnancy and the birth. Once the provision of reception facilities on account of the status of asylum-seeker had ceased on 26 September 2011, the Belgian authorities had intervened again, on humanitarian grounds, on 5 October 2011. After the applicants had spent two days at a place assigned to them at the transit centre of the Woluwe ‑ Saint-Pierre municipality, they had been assigned a place in Bovigny but had failed to go there. The Government could not but conclude that the applicants had themselves caused the situation of which they complained, particularly as they had eventually decided of their own accord to participate in a voluntary return programme before the Aliens Appeals Board had even ruled on their appeal.

125 The Government acknowledged that the applicants had been compelled to leave their accommodation on the expiry of the extended time-limit for executing the order to leave the country. In their submission, the Belgian authorities could not be blamed for having acted in accordance with the law without having regard to the clarification subsequently provided by the CJEU. Moreover, the applicants could and should have used the other possibilities of obtaining assistance. They could have requested social support, pursuant to section 60 of the “Reception” Act, from the social welfare office having territorial jurisdiction or a stay of application of section 57 § 2 of the Act of 8 July 1976 on grounds of impossibility of complying with the order to leave the country for medical reasons (see paragraphs 73 and 86 below). They could also have applied to Fedasil for an extension of material assistance pursuant to section 7 § 1 of the “Reception” Act having regard to the presence of minor children or a request for emergency medical assistance under section 25 § 4 of the “Reception” Act (see paragraphs 85 and 87 above). All decisions taken regarding reception, or even the lack of a decision, were amenable to an appeal to the employment tribunal, in urgent proceedings where appropriate.

2 Observations of the NGO Coordination et initiatives pour réfugiés et étrangers (Ciré), third-party intervener

126 The third-party intervener submitted that the facts dated back to a period known as the “reception crisis” during which asylum-seekers arriving in Belgium had encountered major difficulties in obtaining social assistance both from Fedasil, the agency in charge of providing material assistance in reception centres, and from the social welfare offices. They explained that the situation in which the applicants and many other families had found themselves had been the result of an anomaly of Belgian law which, contrary to the requirements of the Reception Directive, provided that reception facilities for asylum-seekers in respect of whom the responsible State was being determined terminated when the time-limit for execution of the “annex 26 quater ” expired and also of the systematic and structural position adopted from 2009 by Fedasil and the social welfare offices to no longer take charge of illegally resident families. Those families found themselves out on the street with no means of obtaining material assistance.

127 In 2011 Fedasil had refused to provide reception facilities to 553 families, which amounted to 2,143 adults and 1,242 minors. After the employment tribunal had found against Fedasil and imposed a fine, the latter had eventually granted reception facilities to 43 of those families. Between March 2011 and May 2012 the Federal Ombudsman had sent 18 recommendations to Fedasil, of which 15 had been implemented.

128 The third-party intervener observed that the principle of non ‑ refoulement was fully applicable to asylum-seekers and that the refusal to provide physical reception facilities for vulnerable persons could amount to treatment contrary to Article 3, as had been acknowledged by the Court in M.S.S v. Belgium. , but could also create particular problems regarding the principle that the child’s interests were paramount.

129 Furthermore, failing detention and thus an imminent risk of removal within the meaning of the case-law of the Aliens Appeals Board illegally resident families did not have any means of appeal of suspensive effect against their removal, and had no material means of waiting for the outcome of the appeal determining the remainder of the asylum proceedings.

3 The Court’s assessment

a) General principles

130 The Court reiterates that the right to political asylum is not contained in either the Convention or its Protocols (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 113, ECHR 2012) and that the Contracting States are entitled, subject to their treaty obligations, including those arising from the Convention, to control the entry, residence and removal of aliens (see, among many other authorities, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII).

131 In line with those obligations, States must have particular regard to Article 3 of the Convention, which enshrines one of the fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim’s conduct (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV).

132 The Court has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see M.S.S. v. Belgium and Greece , cited above, § 219; Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 114, ECHR 2014 (extracts); and Tarakhel , cited above, § 94).

133 Treatment is considered to be “degrading” within the meaning of Article 3 when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance (see M.S.S. v. Belgium and Greece , cited above, § 220; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 202, ECHR 2012; and Svinarenko and Slyadnev , cited above, § 115).

134 Applying those criteria to the question of living conditions, the Court had found – prior to M.S.S. v. Belgium and Greece , cited above – that it could not be excluded that the responsibility of the State might be engaged under Article 3 in respect of treatment where an applicant, who was wholly dependent on State support, found him or herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity. However, none of the factual situations examined had been considered by the Court to reach the threshold of severity required by Article 3 (see, for example, Budina v. Russia , (dec.), no. 45603/05, 18 June 2009).

135 With regard to an Iraqi national who had obtained provisional refugee status from the Office of the United Nations High Commissioner for Refugees and complained that he had been unable to provide for his essential needs in Turkey, the Court held that Articles 3 and 8 of the Convention could not be interpreted as entailing any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living (see Müslim v. Turkey , no. 53566/99, § 85, 26 April 2005).

136 With M.S.S. v. Belgium and Greece , cited above, which concerned an Afghan asylum-seeker who had been sent back to Greece by the Belgian authorities in accordance with the Dublin II Regulation, the Court initiated a change in its case-law. After noting that, unlike in the Müslim case, the obligation to provide decent material conditions to impoverished asylum-seekers had entered into positive law, the Court held that, in determining whether the threshold of severity required by Article 3 had been attained, particular importance had to be attached to the applicant’s status as an asylum ‑ seeker. Accordingly, he belonged to a particularly underprivileged and vulnerable population group in need of special protection. It noted the existence of a broad consensus at the international and European level concerning this need for special protection (see M.S.S. v. Belgium and Greece , cited above, § 251).

137 When assessing the applicant’s individual situation, the Court held that the national authorities had not had due regard to that vulnerability and that the seriousness of the impoverished situation in which the applicant had found himself, having remained for several months with no means of providing for his essential needs, combined with the inertia on the part of the asylum authorities, had amounted to a violation of Article 3 of the Convention (see M.S.S. v. Belgium and Greece , cited above, §§ 262-63; see, following M.S.S. , Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, § 283, 28 June 2011, and F.H. v. Greece , no. 78456/11, §§ 107 ‑ 11, 31 July 2014).

138 In cases concerning the reception of accompanied or unaccompanied minors, the Court has also established that the relevant authorities should consider that the status of child prevailed over that of illegal immigrant (see Muskhadzhiyeva and Others v. Belgium , no. 41442/07, §§ 55 and 63, 19 January 2010; Kanagaratnam v. Belgium , no. 15297/09, § 62, 13 December 2011; and Popov v. France , nos. 39472/07 and 39474/07, § 91, 19 January 2012). Recently, the Tarakhel case, which concerned the planned return to Italy by the Swiss authorities under the Dublin II Regulation of a family of Afghan nationals, gave the Court the opportunity to rule that the vulnerability of asylum-seekers was accentuated in the case of families with children and that the reception conditions for children seeking asylum must be appropriate for their age, to ensure that those conditions did not create for them a situation of stress and anxiety, with particularly traumatic consequences (see Tarakhel , cited above, § 119).

b) Application of those principles to the present case

139 The Government submitted that the Belgian authorities had acted with all the necessary care to ensure that the applicants were provided with reception facilities, given that from the date on which they had applied for asylum – on 1 April 2011 – they had been assigned an accommodation centre where their essential needs had been catered for until 26 September 2011.

140 The Court observes that this was not disputed by the applicants. The subject of their complaint against the Belgian authorities was their inability during the period following their eviction, on 26 September 2011, from the accommodation centre until their departure for Serbia, on 25 October 2011, to obtain reception facilities enabling them to provide for their essential needs. The Court’s examination will therefore concern only the latter period.

141 The Court notes that the parties disagree as to whether an obligation to continue providing the applicants with accommodation and decent material conditions had entered into Belgian positive law and constituted an obligation on the Belgian authorities under European Union law, namely, the Reception Directive (see paragraphs 71, 75 and 103 above; see, regarding the relevance of the question, M.S.S. v. Belgium and Greece , cited above, §§ 250 and 263, and S.H.H. v. the United Kingdom , no. 60367/10, § 90, 29 January 2013).

142 The Court notes that under section 6 of the “Reception” Act of 12 January 2007, material assistance had to be granted throughout the entire asylum proceedings and terminate when the time-limit for complying with the order to leave the country served on the asylum-seeker had expired. At the material time, in the context of the “reception crisis”, Fedasil had interpreted that provision restrictively with regard to asylum-seekers who, like the applicants, were subject to the Dublin procedure. Asylum-seekers were deprived of material assistance on the expiry of the time-limit for complying with the order to leave the country accompanying the decision refusing to examine their application on the grounds that another State was responsible for examining it, even where an appeal was pending against that decision (see paragraph 84 above).

143 The Court observes from the parties’ description of the situation under Belgian law that it cannot be inferred from this that the applicants, as a family accompanied by minor children, including a severely disabled child, were unable, under Belgian law, to continue receiving any form of material and medical assistance. As submitted by the Government themselves, the entire legislative apparatus formed by the “Reception” Act of 12 January 2007 or the Public Social Welfare Offices Institutional Act of 8 July 1976 was designed so that, in exceptional situations, such as that of the applicants, material and medical assistance could in theory have been extended.

144 The Government criticised the applicants, moreover, for not requesting assistance by those other means. In the Government’s submission, the applicants could, and should, have requested social support from the relevant social welfare office or applied to Fedasil for an extension of material assistance under section 7 of the “Reception” Act (see paragraph 85 above). The applicants submitted that, in practice, as the network had been saturated during the relevant period, those possibilities had been bound to fail.

145 The Court notes that the applicants’ allegations are supported by the findings made both by the players working on the ground at the material time, including the third-party organisation, and by the domestic courts and relevant administrative authorities, particularly the Brussels social welfare office and Fedasil (see paragraphs 92-95 above). All the decisions and reports consulted reach the same conclusions on this point: at the material time the asylum-seekers’ reception network had become saturated on account of a very high number of asylum-seekers. In that context the policy followed by the Brussels social welfare office, which was the office having jurisdiction for the applicants, and Fedasil was to exclude from the reception facilities families accompanied by minor children who were in the applicant’s position, namely, illegally resident owing to an order to leave the country and pending a final decision in their asylum proceedings. The majority of the families concerned were deprived of accommodation and any form of assistance whatsoever pursuant to the “Reception” Act or the Public Social Welfare Offices Institutional Act.

146 Added to that is the fact that in the present case, contrary to the Government’s submission, the applicants’ representative and the French ‑ speaking community’s General Delegate to the Rights of the Child had contacted the relevant authorities in an attempt to find urgent accommodation for the applicant family (see paragraphs 44 and 46 above).

147 In those circumstances the applicants can hardly be criticised for failing to seek a solution regarding where they were to live following their eviction from the accommodation centre.

148 That conclusion remains unaltered by the fact, stressed by the Government, that the applicants did not appeal to the employment tribunal against the lack of a decision by Fedasil regarding reception facilities. Such proceedings, which could have been instituted under the urgent procedure or ex parte , do not satisfy the requirements of effectiveness contained in the Convention. The applicants and Ciré, the third-party intervener, have shown that in the context of the reception crisis the Brussels judicial district courts refused the use of ex parte proceedings to families in the same situation as the applicants. With regard to the urgent procedure, it is not disputed that if the applicants had applied to the President of the Brussels Employment Tribunal under the urgent procedure, in addition to the practical difficulties of appointing a lawyer and complying with the relevant time-limits, they would have had to wait approximately ten days at the material time to obtain an order. Moreover, and in any event, the decisions examined by the Court (see paragraphs 95-96 above) show that at the relevant time the case-law of the employment tribunals was still inconsistent regarding acknowledgment of the right of reception of families who were “illegally resident” and subject to the Dublin procedure. Lastly, even supposing that the applicants had been able to apply to the employment tribunal and obtain an injunction against Fedasil to find them accommodation or incur a penalty, they would still have had to obtain execution of the injunction, which at the time could take several weeks (see paragraph 96 above).

149. In those circumstances, being faced with that much uncertainty, the Court is of the opinion that neither can the applicants be criticised for failing to apply to the employment tribunal. It considers that in the light of their particular situation and the specific circumstances of the reception network at the material time, the applicants were dispensed from the obligation to use that remedy.

150 The Government submitted, lastly, that the applicants had been partly responsible for their situation by failing to go to the accommodation centre that had been assigned to them after they had stayed at the transit centre on 5 and 6 October 2011, namely, the Bovigny centre. The applicants claimed that they had gone to the centre assigned to them but had been sent back to Fedasil’s Dispatching Department on the grounds that their order to leave the country was no longer valid.

151 The Court is clearly not in a position to verify what actually happened. That said, the Court can well believe that, given the circumstances, the applicants, who were unfamiliar with the correct procedure, were overwhelmed and not in a position to use every possible means to find their way to an accommodation centre located over 150 km from Brussels. The Court considers that this possibility should not be held against them and that it was rather for the Belgian authorities to show greater diligence in finding them accommodation.

152 Having regard to the foregoing, the Court rejects the objection raised by the Government, based on non-exhaustion of domestic remedies (see paragraph 114 above).

153 The Court next observes that, for the purposes of Article 3 of the Convention, although they had received an order to leave the country, the applicants had applied to the Belgian authorities for asylum and the procedure to determine the State responsible for examining their applications had been under way. If that procedure is not to be deprived of all effectiveness as a result of a refusal to protect the most elementary of rights, the applicants, like the applicant in M.S.S. v. Belgium and Greece (§ 251), must be regarded as belonging to “a member of a particularly underprivileged and vulnerable population group in need of special protection”. As the Court observed in Tarakhel , cited above (§ 119), that requirement of “special protection” is particularly important when the persons concerned are children. It is an even stronger requirement in the present case, in the Court’s view, given the presence of very young children, including a baby and a disabled child, who were themselves inherently fragile and more vulnerable than adults when faced with deprivation of their basic needs.

154 The fact that in the present case the applicants were awaiting a final decision regarding the determination of the State responsible for examining their asylum application did not place them in a different situation from that of the applicants in the above-cited cases with regard to the Convention given that in none of those cases did the authorities of the returning State rule on the merits of the applicants’ fears of treatment contrary to Article 3 of the Convention in the event of return to the country they had fled. The fact that in the instant case the French authorities had previously examined the asylum applications lodged by the applicants before rejecting them cannot be taken into account since the applicants alleged before the Belgian authorities that they had arrived in Belgium after leaving the territory of the European Union for more than three months and had requested the protection of the Belgian authorities on the basis of a new situation.

155 Lastly, and as a subsidiary consideration, the Court observes that the CJEU ruled, in judgments of 27 September 2012 and 27 February 2014, admittedly delivered after the facts of the instant case, on the scope of the requirements of the Reception Directive in the situation in which the applicants found themselves here. According to the CJEU, the Reception Directive required the Member States to grant throughout the procedure determining the State responsible for examining their asylum application sufficient material assistance to ensure a dignified standard of living and adequate for health and to ensure the applicants a means of subsistence and housing. Reception States also had to take account of the situation of persons with special needs and of the best interests of children (see paragraphs 105-06 above).

156 The Court must next rule, with regard to the case-law set out above (see paragraphs 130-138 above) on whether the conditions in which the applicants were living in Belgium between 26 September and 25 October 2011 engage the responsibility of the Belgian State under Article 3.

157 With regard to the reality of the living conditions experienced by the applicants, the Court notes that they were not the subject of dispute before it. The Government acknowledged that the applicants were dependent on the reception facilities and were compelled to leave their accommodation on 26 September 2011 pursuant to Belgian law. Nor did they deny that from that date onwards the applicants had found themselves without any means of subsistence and without accommodation, barring two nights in a transit centre.

158 The Court notes that the situation experienced by the applicants was a particularly serious one. They explained that when they left their reception centre on 26 September 2011 they found themselves out on the streets before staying in a public square in the centre of Brussels where other homeless people from Serbia’s Roma minority were already staying. They remained there – with no assistance to cater for their most basic needs (eating, washing and housing) – until 5 October 2011. The fact that the authorities had offered them accommodation at a reception centre did not alter the applicants’ situation. After two nights in a transit centre and their return to Brussels on 7 October 2011, the applicants disembarked at the Gare du Nord in Brussels, where they stayed nearly three more weeks before their return to Serbia was organised by a charitable organisation.

159 The Court observes that the seriousness of this finding echoes that of the European Committee of Social Rights, a body monitoring respect for human rights guaranteed by the European Social Charter, which concluded, in a decision of 23 October 2012, that this type of situation did not respect the child’s right to protection laid down by Article 17 § 1 of the revised Charter (case of Defence for Children International (DCI) v. Belgium , complaint no. 69/2011, paragraphs 108 ‑ 109 above).

160 Admittedly, as submitted by the Government, that decision was made after the facts of the present case. However, it is based on the same premise as that of the Court when it interprets Article 3 of the Convention, namely, the rights linked to the prohibition of all inhuman and degrading treatment are granted to individuals on account of the dignity attached to the human being.

161 Lastly, the Court notes that the predicament in which the applicants found themselves could have been avoided or at the very least curtailed if the application to set aside and obtain a stay of execution of the decisions refusing leave to remain with an order to leave the country that they had lodged on 16 June 2011 had been processed more speedily by the Aliens Appeals Board, which did not rule until 29 November 2011, that is, more than two months after the applicants had been excluded from the reception facility and over a month after their departure from Belgium.

162. Having regard to the foregoing, the Court considers that the situation experienced by the applicants calls for the same conclusion as in the case of M.S.S. v. Belgium and Greece. In the Court’s opinion, the Belgian authorities did not duly take account of the vulnerability of the applicants as asylum-seekers or of that of their children. Notwithstanding the fact that the reception crisis was an exceptional situation, the Court finds that the Belgian authorities should be considered to have failed to satisfy their obligation not to expose the applicants to conditions of extreme poverty for four weeks – barring two nights – having left them out on the streets with no resources, no access to sanitary facilities, and no means of providing for their essential needs. The Court considers that the applicants were thus victims of treatment which failed to respect their dignity and that this situation undoubtedly aroused in them feelings of fear, anguish or inferiority capable of inducing desperation. It finds that such living conditions, combined with the lack of any prospects of their situation improving, attained the level of severity required to fall within the scope of Article 3 of the Convention and amounted to degrading treatment.

163 It follows that the applicants found themselves, through the fault of the authorities, in a situation incompatible with Article 3 of the Convention. Accordingly, there has been a violation of that provision.

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION (DEATH OF THE APPLICANTS’ DAUGHTER)

164 The applicants complained that the reception conditions in Belgium had resulted in their eldest daughter’s death. They relied on Article 2 of the Convention, which provides:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

...

165 The Court finds that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. The Court therefore declares it admissible.

166 The applicants submitted that their eldest daughter would not have died of a lung infection less than one month after they had returned to Serbia if the Belgian authorities had not exposed them to conditions of extreme material poverty in Belgium and had not thus “forced” them to return to Serbia where the living conditions of the Roma population that they had fled, particularly on account of their daughter’s poor health, awaited them.

167 The Government submitted that the applicants had not shown beyond all reasonable doubt that their eldest daughter’s death, in hospital in Serbia, had been caused by the conditions of their stay in Belgium. Failing such evidence and in the absence of reliable and objectively verifiable information regarding the grounds for admitting her to hospital and the exact causes of the death, it had to be concluded that there was no causal link between the conditions allegedly experienced in Belgium and the circumstances of the death in Serbia.

168 The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. Article 2 of the Convention may imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual from another individual or, in particular circumstances, from himself. However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind in particular the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, among other authorities, Keenan v. the United Kingdom , no. 27229/95, §§ 89-90, ECHR 2001 ‑ III; De Donder and De Clippel v. Belgium , no. 8595/06, §§ 68-69, 6 December 2011; and Nencheva and Others v. Bulgaria , no. 48609/06, §§ 105 and 108, 18 June 2013).

169 In the light of the foregoing, the Court must examine whether the Belgian authorities knew or ought to have known that there was a real and immediate risk that the applicants’ eldest daughter’s health would deteriorate following their eviction from the accommodation centre to a point that could result in her death.

170 A number of factors must be taken into account in that connection. The Court notes, firstly, that whilst the Belgian authorities could not have been unaware that the applicants would be destitute following their eviction from the centre or that the eldest daughter suffered from a number of disorders, the medical certificate issued in support of the request for leave to remain on medical grounds (see paragraphs 33-34 above) made no mention of the degree of seriousness of those disorders. Secondly, and above all, the chronology of events shows that a number of factors could have contributed to the applicants’ daughter’s death and in particular the fact that the applicants spent several weeks living in insalubrious conditions following their return to Serbia.

171 In those circumstances, the Court considers that the applicants have not shown, beyond all reasonable doubt, that their eldest daughter’s death was caused by the conditions of their stay in Belgium and that the Belgian authorities failed to satisfy any positive obligation in that respect.

172 Accordingly, there has not been a violation of Article 2.

III. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE CONVENTION (ASYLUM AND REGULARISATION PROCEDURES)

173 The applicants alleged that their – direct or indirect – removal to Serbia and the refusal to grant them leave to remain had endangered their eldest daughter’s life and exposed them to a risk of inhuman and degrading treatment in breach of Articles 2 and 3 of the Convention cited above.

174 They also complained that they had not had an effective remedy in respect of those complaints. They alleged a violation of Article 13 of the Convention, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. Classification of the complaints

175 The Court observes that the applicants’ complaints against Belgium, as set out in the application form and expanded in the written observations, mainly concerned i) their fears of being exposed, in the event of their return to Serbia, to risks for their daughter’s life and their physical integrity in breach of Articles 2 and 3, which was why they had applied for asylum and leave to remain on medical grounds in Belgium, and ii) the lack of an effective remedy before the national authorities in respect of those fears, in breach of Article 13.

176 It notes that the Belgian authorities did not examine the merits of their above-mentioned fears either regarding asylum or leave to remain. It is not for the Court to rule in that connection. It is rather for the relevant national authorities to examine the applicants’ fears and the documents produced by them and to assess the risks incurred by them, under Articles 2 and 3, in the event of a return to their country of origin or to an intermediary country. This is in accordance with the principle of subsidiarity, which underpins the Convention system, and with the fact that neither the Convention nor any of its Protocols guarantees a right to political asylum (see M.S.S. v. Belgium and Greece, cited above , § 299; Singh and Others v. Belgium , no. 33210/11, § 55, 2 October 2012; A.C. and Others v. Spain , no. 6528/11, § 93, 22 April 2014; and Sharifi and Others v. Italy and Greece , no. 16643/09, § 138, 21 October 2014).

177 However, the fact that the applicants’ fears were not the subject of a domestic decision does not dispense the Court from examining whether the applicants had arguable claims that they risked being subjected to treatment contrary to Articles 2 and 3 and, if so, had effective guarantees, for the purposes of Article 13, enabling them to assert those claims and protecting them from arbitrary refoulement to the country they had fled (see Nuri Kurt v. Turkey , no. 37038/97, § 116, 29 November 2005; M.S.S. v. Belgium and Greece , cited above, §§ 294-320; Singh and Others , cited above, § 55; and Sharifi and Others, cited above, § 139).

178 As the Court observed in the case of Sharifi and Others , cited above (§ 139), the fact that the applicants’ fears about (direct or indirect) refoulement to Serbia were lodged directly with the Court, under Articles 2 and 3 of the Convention, could admittedly be deemed contrary to the rule of exhaustion of domestic remedies laid down by Article 35 § 1 of the Convention. However, the alleged lack of effective access to the asylum procedure could have deprived the applicants, in practice, of any protection at the national level against arbitrary refoulement , in breach of Article 13.

179 These two aspects of the principle of subsidiarity, which are expressed in Articles 13 and 35 § 1 of the Convention, have equal weight as factors to be taken into consideration.

180 Accordingly, the complaints relating to the applicants’ removal to Serbia and the lack of access to an effective remedy in practice fall to be examined under Article 13, taken in conjunction with Articles 2 and 3 of the Convention, and not under Articles 2 and 3 taken alone.

B. Violation of Article 13 taken in conjunction with Articles 2 and 3 of the Convention

1 Admissibility

a) Objections raised by the Government

181 In so far as it concerned the proceedings regarding determination of the State responsible under the Dublin Regulation for examining the asylum application, the Government argued that this part of the application was not admissible for two reasons. Firstly, the applicants had ultimately not been removed by the Belgian authorities either directly to France or indirectly to Serbia. On the contrary, they had returned to Serbia of their own accord. Secondly, the applicants had not proved the existence of a risk that they would suffer treatment contrary to Article 3 of the Convention in France.

182 With regard to the appeals against the decision refusing the applicants leave to remain on medical grounds, the Government raised an objection on grounds of inadmissibility for failure to exhaust domestic remedies because the applicants had not lodged an appeal against the Aliens Office’s decision declaring inadmissible their application based on section 9 ter of the Aliens Act.

b) The Court’s assessment

183 The Court reiterates that it has given a legal classification to the facts underlying the complaints about the applicants’ removal and the refusal to grant them leave to remain and decided to examine these complaints under only Article 13 taken together with Articles 2 and 3 of the Convention and thus not under Articles 2 and 3 taken alone (see paragraphs 178-83 above). In other words, the Court will examine the applicants’ complaints with regard to the respondent State’s obligation to provide the applicants with an “effective remedy” by which a national authority could examine their complaints based on Articles 2 and 3, without the Court itself ruling on the merits of those complaints.

184 It follows that the objections raised by the Government, given that they concern the admissibility of the complaints based on a risk of a violation of Articles 2 and 3, are devoid of purpose and must accordingly be rejected.

185 With regard to the Government’s argument that the applicants had voluntarily left Belgium for Serbia, the Court is at pains to point out that it considers that the applicants’ “voluntary” departure confirms the extreme poverty in which the family found itself, to the point of having no other solution than to return to Serbia. The applicants never waived their rights; it would appear, on the contrary, that they did everything in their power to remain in Belgium and defend them. The Court refers in this connection to its examination of the situation and its conclusion under Article 3 of the Convention (see paragraphs 139-63 above).

186 The Court also observes that the part of the application relating to Article 13 is not manifestly ill-founded under Article 35 § 3 a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

2 Merits

a) Existence of arguable complaints

187 In accordance with its established case-law, the Court must determine whether the applicants’ complaints based on Articles 2 and 3 of the Convention regarding their direct or indirect return to Serbia were “arguable” complaints that they should have been able to submit for examination on the merits by a national authority in proceedings meeting the requirements of Article 13 of the Convention.

188 The Court reiterates that a complaint may be regarded as arguable where it is not prima facie unfounded and warrants an examination on the merits by the appropriate national authorities (see Çelik and İmret v. Turkey , no. 44093/98, § 57, 26 October 2004; Nuri Kurt , cited above, § 117; Singh and Others , cited above, § 84; and Sharifi and Others , cited above, §§ 173 ‑ 74).

189 As the national authorities are better equipped than the Court to establish the facts necessary for an assessment of the alleged fears, a decision on their part makes the Court’s task easier and allows it to confine itself to its subsidiary role post factum (see D.P. and J.C. v. the United Kingdom , no. 38719/97, § 136, 10 October 2002). That being said, as the Court has already pointed out (see paragraph 177 above and the references cited therein), the absence of such a decision does not dispense it from the duty to examine itself whether the applicants had arguable complaints to submit before the Belgian authorities. In view of the potentially serious and irreparable nature of the alleged suffering risked (see Soering v. the United Kingdom , 7 July 1989, § 90, Series A no. 161), the lack of an examination at domestic level means that the Court should not adopt a prima facie restrictive interpretation of the arguability of the complaints in issue.

190 With regard to the applicants’ fear of an indirect return to Serbia via France in the context of the Dublin procedure, the Court notes that the asylum application lodged by the applicants in France had been rejected almost a year earlier by the authorities of that country when the Aliens Office asked France to take the applicants back under the Dublin II Regulation (see paragraphs 14-15 above). The applicants accordingly had no guarantee that the French authorities would not return them to Serbia.

191. Regarding the situation in Serbia, a country which the applicants had fled, the Court is in possession of a number of reports indicating that Serbs of Roma origin were the victims of discrimination in Serbia, lived in appalling conditions, and had no access to health care, housing or education (see paragraphs 110-12 above). In the Court’s opinion, regard should be had to this information combined with the allegations of discrimination and ill ‑ treatment suffered in Serbia which the applicants raised before the Belgian asylum authorities (see paragraphs 12 and 22) and to the specific vulnerability of the applicants on account of the presence of a severely disabled young girl and of young children, including a baby. Those factors taken together are sufficient for the Court to consider that the complaints of risks in the event of a return to Serbia were arguable.

192 The Court therefore rejects the Government’s submission that the applicants did not have arguable claims to submit before the Belgian authorities when they applied for asylum on 1 April 2011 and pursued the procedure before the Aliens Appeals Board.

193 Furthermore, and contrary to the Government’s submission, the fact that the applicants did ultimately leave does not affect the arguability of their complaints. The Court reiterates that, in determining whether complaints are arguable, it must make its decision in the light of the situation existing at the time of the national authorities’ examination, even if, as in the present case, the risk of treatment contrary to Article 3 has evolved over time (see Gebremedhin [Gaberamadhien] v. France , no. 25389/05, § 56, ECHR 2007 ‑ II; I.M. v. France , no. 9152/09, § 100, 2 February 2012; and Singh and Others , cited above, § 80).

194 In conclusion, the applicants’ complaints under Articles 2 and 3 can be deemed to have warranted an examination on the merits before a national authority in proceedings satisfying the requirements of effectiveness laid down by Article 13. Accordingly, that provision is applicable.

b) Effectiveness of the remedies

i. The parties’ submissions

195 The applicants submitted that their appeal to the Aliens Appeals Board against the order to leave the country was not an effective remedy satisfying the requirements of Article 13 of the Convention taken in conjunction with Articles 2 and 3 for two reasons: firstly, the appeal did not suspend their possible refoulement to France. As they were a family, they could not be detained; thus they did not have access to the procedure for requesting a stay of execution of the removal measure on grounds of extreme urgency. Admittedly, they did request a stay of the measure, but they did so under the “ordinary” procedure that did not have the effect of suspending the order to leave the country. In accordance with Fedasil’s policy, in such a case material assistance was not maintained pending a decision of the Aliens Appeals Board. As they had had no practical possibility of waiting for the outcome of the Dublin procedure, the applicants had been compelled to leave Belgium, which had rendered their appeal devoid of any purpose. The applicants also complained about the limits of the review of lawfulness on an application to have a decision set aside, since the Aliens Appeals Board confined itself to examining points of law, and not the facts, on the basis of an assessment at the time the transfer decision was taken and not at the time of the court’s decision, contrary to the Court’s rulings in Salah Sheekh v. the Netherlands (no. 1948/04, § 136, 11 January 2007), M.S.S. v. Belgium and Greece (cited above, § 389), and Yoh-Ekale Mwanje v. Belgium (no. 10486/10, § 106, 20 December 2011). Lastly, the applicants submitted that they had also been deprived of an effective remedy against the decision refusing them leave to remain on medical grounds since they had not learnt of the decision until the proceedings before the Court.

196 The Government submitted that the present case had to be distinguished from the cases cited by the applicants. Firstly, the applicants had never been removed since they had themselves decided to return to Serbia. Secondly, the decision taken by the authorities following their asylum application, even if it only concerned the determination of the responsible State and accordingly ruled out any examination of the application on the merits, aimed to ensure their transfer to France, a country in which they had not presented an arguable claim that they would be victims of treatment contrary to Article 3 and not be provided with the conditions necessary to have their fears examined. Where foreign nationals did not show that their return would have potentially irreversible consequences, it was not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect but only that they should have an effective possibility of challenging the expulsion order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012), which was not disputed by the applicants in the present case.

ii. The Court’s assessment

α) Article 13 taken in conjunction with Article 3 of the Convention

– General principles

197 The Court reiterates its well-established case-law regarding the application of Article 13, taken in conjunction with Article 3 of the Convention, to the expulsion of aliens, and particularly potential or unsuccessful asylum-seekers (see, among other authorities, M.S.S. v. Belgium and Greece, cited above, §§ 286-93, and Hirsi Jamaa and Others , cited above, §§ 197-200).

198 In view of the importance which the Court attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises, the available remedies must provide guarantees of accessibility, quality, speed and suspensive effect.

199 As the Convention is designed to guarantee not rights that are theoretical or illusory but rights that are practical and effective to everyone within the jurisdiction of the States Parties, effectiveness requires that remedies be available and accessible in law and in practice. Accessibility in practice of a remedy is particularly important in order to assess the effectiveness of remedies available to asylum-seekers. It requires, among other things, that the exercise of a remedy not be unjustifiably hindered by acts or omissions of the authorities (see also M.S.S. v. Belgium and Greece , cited above, §§ 318-19 and 392). The Court has particular regard to linguistic obstacles, the possibility of access to the necessary information and to appropriate advice, the material conditions with which the applicant may be faced and any other concrete aspect of the case (see I.M. v. France , no. 9152/09, § 150, 2 February 2012; A.C. and Others v. Spain , cited above, §§ 85-86; and Sharifi and Others, cited above, §§ 167-69).

200 Effectiveness also presupposes a remedy of a certain quality. Article 13 requires close scrutiny, and independent and rigorous examination of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see M.S.S. v. Belgium and Greece , cited above, §§ 293 and 387). Article 13 also imposes a duty on the relevant authority to carry out an in-depth examination of arguable complaints based on Article 3. Procedural rules cannot preclude an ex nunc examination of such claims (see Yoh-Ekale Mwanje, cited above, § 106, and Singh and Others , cited above, § 91). The national authority must be able to examine the substance of the complaint and afford proper reparation (see M.S.S. v. Belgium and Greece , cited above, § 387). Whilst the effectiveness of a remedy does not depend on the certainty of a favourable outcome, the lack of any prospect of obtaining adequate redress raises an issue under Article 13 (see M.S.S. v. Belgium and Greece , cited above, § 394).

201 Furthermore, Article 13 requires that the national authorities show special diligence (see A.C. and Others v. Spain, cited above, §§ 88 ‑ 103). That being said, speed must not be given priority at the expense of the effectiveness of procedural guarantees designed to protect the persons concerned from arbitrary refoulement (see I.M. v. France , cited above, § 147, and A.C. and Others v. Spain, cited above, § 100). While being aware of the need for States to have the means necessary to deal with the flow of applications resulting from the substantial influx of asylum-seekers, the Court considers that, like Article 6 of the Convention, Article 13 requires States to organise the national authorities in such a way as to satisfy all the requirements of effectiveness (see A.C. and Others v. Spain , cited above, § 104).

202 Lastly, the effectiveness of a remedy for the purposes of Article 13 taken in conjunction with Article 3 presupposes a remedy capable of preventing the damage from materialising. Accordingly, the domestic remedy must automatically suspend enforcement of the removal measure (see Čonka v. Belgium , no. 51564/99, §§ 81-83, ECHR 2002 ‑ I; Gebremedhin [Gaberamadhien] , cited above, § 66; R.U. v. Greece , no. 2237/08, § 77, 7 June 2011, Singh and Others , cited above, § 92; and Hirsi Jamaa and Others, cited above, §§ 205-207).

– Application of the principles in the present case

203 The Court observes, in the light of the applicable statutory provisions and the relevant case-law (see paragraphs 55-56 above), that under Belgian law an order to leave the country is a binding administrative decision which the administrative authorities are authorised to enforce. In the present case execution of the order to leave the country issued to the applicants on 26 May 2011 was extended until 25 September 2011 and could then be enforced at any time from 26 September 2011 onwards. On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board to set the order to leave the country aside and for a stay of execution under the ordinary procedure.

204 As they were not detained with a view to their repatriation, the applicants could not obtain a stay of execution of their expulsion under the extremely urgent procedure pending an examination on the merits by the Aliens Appeals Board of their application to have the order set aside. They therefore lodged, at the same time as the application to set aside, a request for a stay of execution under the ordinary procedure. They complained that as the enforcement of the order to leave the country was not suspended as a result of that request, from 26 September 2011 onwards Fedasil had stopped providing the material assistance they had been receiving until then, which had forced them to leave Belgium for the country they had fled without having the merits of their fears in that country examined by the authorities from whom they had sought protection.

205 The Government concentrated their arguments on the situation in France, the intermediary country under the Dublin procedure, and concluded from the applicants’ inability to convince the Aliens Appeals Board that they risked being subjected to treatment contrary to Article 3 that the applicants had failed to substantiate a right to benefit from an automatically suspensive remedy.

206 The Court cannot uphold the Government’s submission. The fears expressed by the applicants both before the domestic authorities and before this Court concern the risks of treatment contrary to Article 3 of the Convention to which they claimed that they would be subjected in the event of a direct or indirect return to Serbia. In the Court’s view, those claims were arguable (see paragraphs 187-94 above).

207 It follows that in order to defend those claims before the Belgian courts the applicants should have had a remedy offering the guarantees of effectiveness required in the event of expulsion of a foreign national under Articles 13 and 3 taken together as summarised above (see paragraphs 197 ‑ 202).

208 The Court notes that under Belgian law an application to the Aliens Appeals Board to have an order to leave the country set aside does not suspend enforcement of the removal order. The Aliens Act provides for specific procedures, however, for requesting a stay of execution, either under the extremely urgent procedure or under the “ordinary” procedure (see paragraphs 60-63 above).

209 A request for a stay of execution under the extremely urgent procedure automatically suspends enforcement of the removal measure. Under Belgian law as applicable at the material time, prior to the entry into force of the Law of 10 April 2014 (ibid.), the Aliens Appeals Board could, on the basis in particular of an examination of the serious nature of the arguments alleging a violation of the Convention, order, within seventy-two hours, a stay of execution of the impugned decision, thereby ensuring that the persons concerned were not removed from the country before their arguments had been examined in detail in the context of the application to set aside the decision.

210 An automatic stay of execution could also be obtained by means of a different combination of remedies: this involved first an application to set aside and a request for a stay of execution under the ordinary procedure to be lodged within thirty days of notification of the impugned decision, followed by a request for interim measures under the extremely urgent procedure once the alien concerned was made the subject of a coercive measure. The Aliens Appeals Board then had a statutory duty to examine simultaneously, within seventy ‑ two hours, the request for extremely urgent interim measures and the ordinary request for a stay of execution that had already been lodged. The request for extremely urgent interim measures, once lodged, automatically suspended enforcement of the removal order.

211 However, according to the interpretation of the concept of extreme urgency by the Aliens Appeals Board, both the request for a stay of execution under the extremely urgent procedure and the request for interim measures under the extremely urgent procedure required the existence of a coercive measure – in principle detention of the persons concerned – in order to be declared admissible and well-founded (see paragraphs 62-63 above).

212 The Court observes that this system, as described above (paragraph 210), obliged the foreign national concerned, who was the subject of an expulsion measure and maintained that a stay of execution of that measure was an urgent matter, to lodge a precautionary application, in this instance a request for a stay of execution under the ordinary procedure. That application, which did not have suspensive effect, had to be lodged for the sole purpose of retaining the right to take action when the matter attained real urgency as defined by the case-law of the Aliens Appeals Board, that is, when a coercive measure was applied against the foreign national in question.

213 The Court considers that this system can be criticised on a number of counts.

214 Firstly, the risk cannot be ruled out that in a system where a stay of execution must be applied for and is examined on a case-by-case basis it may be refused wrongly, in particular were it subsequently to transpire that the court ruling on the merits does nonetheless have to quash an expulsion order for failure to comply with the Convention, for instance if it considers after a more thorough examination that the applicant would actually risk being subjected to ill-treatment in the receiving country. In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13 (see Čonka , cited above, § 82, and A.C. and Others v. Spain , cited above, § 94).

215 It should be noted that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. That is one of the consequences of the rule of law, which is one of the fundamental principles of a democratic society inherent in all the Articles of the Convention (see Čonka , cited above, § 83; Gebremedhin [Gaberamadhien], cited above, § 66; R.U. v. Greece , cited above, § 77; and A.C. and Others v. Spain , cited above, § 95).

216 Secondly, in the Court’s view the arrangement under Belgian law, while it may be effective in theory, is in practice difficult to implement and very complex. In the present case, the fact that an application for a stay of execution under the ordinary procedure is not of suspensive effect and results in material assistance being withheld “forced” the applicants to return to the country they had fled without the merits of their fears being examined either by Belgium, whose responsibility had been declined by the Aliens Office (see paragraph 18 above), or by France, whose responsibility was disputed by them whereas a few months later their submissions were upheld by the Aliens Appeals Board (see paragraph 30 above). The Court finds that in the particular circumstances of the instant case the Belgian system did not offer the guarantees required by Article 13 taken in conjunction with Article 3 of availability and accessibility of remedies in law and in practice (see paragraphs 197-202 above).

217 Thirdly, the Court observes that this system forces the persons concerned, who are already in a vulnerable position, to take further action in extremis at the time of enforcement of the measure. This situation is of particular concern in the case of families accompanied by minor children, bearing in mind that execution of the measure in the form of placement in detention, if it is unavoidable, must be kept to a strict minimum, in accordance in particular with the Court’s case-law (see Muskhadzhiyeva and Others ; Kanagaratnam ; and Popov , cited above).

218 Fourthly, the Court cannot overlook the delays in the procedure in question. The application to have the order to leave the country set aside was lodged on 16 June 2011 and oral submissions made on 26 August 2011. Yet the Aliens Appeals Board did not deliver its judgment until 29 November 2011, after the applicants had left for the country they had fled and without the merits of their fears, as formulated before the Belgian asylum authorities, being examined by those authorities or by the French authorities. That situation deprived them, in practice, of the possibility of pursuing the procedure in Belgium and in France. Having regard to the nature of the grounds relied on before the Aliens Appeals Board and the serious consequences for the applicants’ legal and material situation of the decision complained of before it, the Court considers that the application to have the order set aside was also inadequate on account of the time taken to deal with it.

219 The Court notes, lastly, that the applicants sought a remedy via another avenue against their removal. They lodged an application for leave to remain on medical grounds based on section 9 ter of the Aliens Act (see paragraph 33 above). However, the applicants did not learn of the existence of that decision until later, during the proceedings before the Court (see paragraphs 35-36 above). It follows that they did not have an effective remedy by which to challenge that decision either.

220 In view of the analysis of the Belgian system as in force at the material time, the Court concludes that the applicants did not have an effective remedy in the sense of one producing automatic suspensive effect and by which they could obtain an effective review of their arguments alleging a violation of Article 3 of the Convention. There has therefore been a violation of Article 13 taken in conjunction with Article 3 of the Convention.

β) Article 13 taken in conjunction with Article 2 of the Convention

221 Having regard to the above conclusion and the circumstances of the case, the Court considers it unnecessary to examine the applicants’ complaints under Article 13 taken in conjunction with Article 2 of the Convention (see M.S.S. v. Belgium and Greece , cited above, §§ 322 and 397).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

222 Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

223 The applicants claimed 64,750 euros (EUR) in respect of the non ‑ pecuniary damage they had suffered, a sum which they broke down as follows: EUR 3,250 for each of the seven applicants who had lodged the application, corresponding to EUR 125 per applicant per day spent on the streets (twenty-six days), and 7,000 euros for each of the six current applicants following the death of the eldest daughter.

224 The Government left the matter to the Court’s discretion.

225 The Court notes that it has found no violation of Article 2 of the Convention (see paragraph 172 above). It therefore makes no award in respect of the non-pecuniary damage suffered on account of the applicants’ eldest daughter’s death.

226 However, having found a violation of Article 3 and being satisfied that the applicants clearly suffered non-pecuniary damage on account of their living conditions in Belgium after their eviction from the accommodation centre, the Court, making an assessment on an equitable basis, as required by Article 41 of the Convention, awards the parent applicants, for themselves and as representatives of the children and heirs of their deceased child, the sum claimed in full, namely, EUR 22,750.

B. Costs and expenses

227 The applicants also claimed EUR 8,120 for the costs and expenses incurred before the Court. Their representative produced a bill of costs and expenses in support of the claim and indicated that the amount claimed corresponded to eighty-nine hours’ work at an hourly rate of ninety euros. The remainder concerned photocopying and communication expenses.

228 The Government left the matter to the Court’s discretion.

229 According to the Court’s case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum. In the present case, on the basis of the information in its possession and the particular complexity of the case, the Court considers the sum claimed to be reasonable and decides to award it in full to the applicant parents, for themselves and as representatives of the children and heirs of their deceased child.

C. Default interest

230 The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1 Joins to the merits , by a majority, the Government’s preliminary objection on grounds of non-exhaustion of domestic remedies regarding the reception conditions and dismisses it;

2 Rejects , by a majority, the other preliminary objections;

3 Declares , by a majority, the application admissible;

4 Holds , by five votes to two, that there has been a violation of Article 3 of the Convention owing to the applicants’ reception conditions in Belgium;

5 Holds , unanimously, that there has been no violation of Article 2 of the Convention;

6 Holds , by four votes to three, that there has been a violation of Article 13 taken in conjunction with Article 3 of the Convention;

7 Holds , by six votes to one, that it is not necessary to examine the complaints under Article 13 taken in conjunction with Article 2 of the Convention;

8 Holds , by five votes to two,

(a) that the respondent State is to pay the applicants, V.M. and G.S.M., for themselves and as representatives of the children and heirs of their deceased child, within three months of the judgment becoming final in accordance with Article 44 § 2 of the Convention, the following sums:

(i) EUR 22,750 (twenty-two thousand seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 8,120 (eight thousand one hundred and twenty euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9 Dismisses , unanimously, the remainder of the applicants’ claim for just satisfaction.

Done in French, and notified in writing on 7 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Işıl Karakaş Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinions of Judges Sajó, Keller and Kjølbro are annexed to this judgment.

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) dissenting opinion of Judge Sajó;

(b) dissenting opinion of Judge Keller

(c) dissenting opinion of Judge Kjølbro.

A.I.K. A.C.

DISSENTING OPINION OF JUDGE SAJÓ

(Translation)

Unfortunately, I cannot subscribe to the majority’s finding that there has been a violation of Article 3 of the Convention (reception conditions) and of Article 13 taken in conjunction with Articles 2 and 3 of the Convention in the present case.

I have had the privilege of reading the dissenting opinions of my colleagues Judges Keller and Kjølbro and I find their points of view very pertinent and convincing.

I would merely like to add the following remark: regarding the alleged violation of Article 3 of the Convention (reception conditions), even acknowledging that there was a legal basis for an obligation to provide urgent accommodation, a place had been assigned to the applicants. The explanations provided by the latter do not alter the fact that they were offered accommodation.

The situation of persons seeking reception facilities in Belgium is different from that observed in Greece in the case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011). In Greece the precarious situation was the result of illegal failure to take action on the part of the authorities. That is not the case here. Furthermore, the Belgian authorities provided very generous support to the applicants over a long period.

With regard to Article 13 taken in conjunction with Articles 2 and 3 of the Convention, in respect of an overall assessment of a real risk of being subjected to treatment contrary to those two provisions, I would like to point out that Serbia is a member State of the Council of Europe. Moreover, no judgment of the Court has found that such a situation existed regarding Articles 2 and 3 of the Convention. That does not mean, however, that the situation of Roma, as described in the documents taken into consideration by the majority, is not alarming from a humanitarian point of view.

DISSENTING OPINION OF JUDGE KELLER

(Translation)

I. Introduction

1 I fully share the majority’s view that there has been a violation of Article 3 of the Convention in the present case (see point 4 of the operative provisions). However, I cannot subscribe to their finding that there has been a violation of Article 13 taken in conjunction with Article 3 of the Convention in the present case.

2 I will start by outlining the facts and explaining the importance of the present case for the “Dublin” system (II), before setting out the relevant EU law and case-law (III). I will then discuss the principles of our own case-law (IV) and, lastly, their application to the instant case from the point of view of “arguability” of the applicants’ complaints (V).

II. Scope of the present case

3 This is a Dublin case concerning a Roma family of Serbian origin who were “forced” to return to Serbia. The applicants alleged, among other things, that their direct removal – or indirect removal by France – to Serbia and the refusal to grant them leave to remain had endangered their eldest daughter’s life and exposed them to the risk of inhuman and degrading treatment in violation of Articles 2 and 3 of the Convention cited above. They also complained, under Article 13 of the Convention, that they had not had an effective remedy in respect of those complaints (see paragraphs 174 and 175 of the judgment). As this was a “Dublin” transfer and given that France had agreed to take the applicants back in accordance with Article 16(1) of the “Dublin II Regulation” [Council Regulation EC No 343/2003 of 18 February 2003], the Belgian national authorities did not examine the merits of the applicants’ fears either regarding the right of asylum or leave to remain (see paragraph 176 of the judgment). From the point of view of the Convention, the important question here is whether the applicants’ complaints under Articles 2 and 3 of the Convention were “arguable complaints” which they should have been able to submit for examination on the merits by a national authority in proceedings meeting the requirements of Article 13 of the Convention” (see paragraph 187 of the judgment).

4 The present application is one of a series of cases concerning the effects of a “Dublin” transfer with regard to the Convention (see T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III; K.R.S. v. the United Kingdom (dec.), no. 32733/08, 2 December 2008; M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011; and Tarakhel v. Switzerland [GC] (no. 29217/12, ECHR 2014 (extracts)). The manner in which the Court examines the requirement of “arguable complaints” in the present case will thus be of general importance for the entire European legal system.

III. Relevant EU law

5 There is a presumption in the EU that every Member State observes the fundamental rights of the Union. According to the CJEU, “the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System” is based “on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights” (Judgment of the CJEU of 21.12.2011 – N.S. v Secretary of State for the Home Department and M. E. and Others v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (C-411/10 and(C-493/10), § 83). According to the CJEU, it follows that the Member States of the Union are entitled to have confidence in that presumption in the event of a decision ordering a return to another Member State of the Dublin Regulation (ibid., § 79).

6 . However, the CJEU has also specified that this presumption is not irrebuttable: “European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union” (ibid., § 105). Consequently, “Article 4 of the Charter [of Fundamental Rights of the European Union] must be interpreted as meaning that the Member States ... may not transfer an asylum-seeker to the Member State responsible ... where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum-seekers in that Member State amount to substantial grounds for believing that the asylum-seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision”. The CJEU has reaffirmed that principle (Judgment of the CJEU of 12 December 2013, C ‑ 394/12, Shamso Abdullahi v Bundesasylamt , § 60 , and Judgment of the CJEU of 14 November 2013, C-4/11 Kaveh Puid v Bundesrepublik Deutschland , § 30), which is now codified in the new “Dublin III Regulation” (No 604/2013, Article 3 (2)).

IV. The principles arising from our case-law

a. The relationship between EU law and the Convention

7 In the decision T.I. v. the United Kingdom (cited above), the Court found that the “Dublin” system did not absolve the States Parties of their responsibility under the Convention and that, accordingly, it had a duty – also in the context of “Dublin” returns – to ensure that the obligations to protect an applicant from the risk of being subjected to torture or ill ‑ treatment contrary to Article 3 of the Convention had been fulfilled.

“The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution (see e.g. Waite and Kennedy v. Germany judgment of 18 February 1999, Reports 1999, § 67).”

8 Moreover, in the case of M.S.S. v. Belgium and Greece (cited above, § 339), and then in the case of Tarakhel (cited above, §§ 88 et seq.), the Grand Chamber of the Court observed that the presumption of equivalent protection did not apply in the context of a “Dublin” transfer:

“The Court notes that Article 3 § 2 of the Dublin Regulation provides that, by derogation from the general rule set forth in Article 3 § 1, each member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in the Regulation. This is the so-called “sovereignty” clause. In such a case, the State concerned becomes the member State responsible for the purposes of the Regulation and takes on the obligations associated with that responsibility.”

b. The criterion applicable to refoulement

9 There is an obligation on States Parties under the Convention not to expel a person where there are substantial grounds for believing that he or she faces a real risk of being subjected to treatment contrary to Articles 2 and 3 of the Convention (see, for example, Saadi v. Italy [GC], no. 37201/06, § 152, ECHR 2008, and Soering v. the United Kingdom , 7 July 1989, §§ 90-91, Series A no. 161).

10 Unlike the provisions under EU law applicable to “Dublin” transfers, the relevant criterion with regard to Articles 2 and 3 of the Convention is not therefore the existence of systemic deficiencies in the receiving country, but the existence of a real risk of being subjected to treatment contrary to the Convention. As the Supreme Court of the United Kingdom rightly observed in a judgment of 19 February 2014 ([2014] UKSC 12]) cited by the Grand Chamber in the case of Tarakhel (cited above, §§ 52 et seq.), “violations of Article 3 rights can occur without there being any systemic failure whatsoever”.

11 That being said, there is also a presumption within the Council of Europe that each State Party abides by its commitments under the Convention. In the decision in T.I. v. the United Kingdom (cited above), the Court stated that there was no basis on which it could assume “in this case that Germany would fail to fulfil its obligations under Article 3 of the Convention to provide the applicant with protection against removal to Sri Lanka”. Still more explicitly, in the decision given in the case of K.R.S. v. the United Kingdom (cited above), which concerned a “Dublin” transfer to Greece, the Court, after pointing out that Greece, as a Contracting State, had undertaken to abide by its Convention obligations and to secure to everyone within its jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3, observed that, in the absence of any proof to the contrary, “it must be presumed that Greece [would] comply with that obligation in respect of returnees including the applicant”. Furthermore, the Court considered that the presumption also applied with regard to compliance with EU law: “[t]he presumption must be that Greece will abide by its obligations under those Directives”.

12 Admittedly, in the case of M.S.S. v. Belgium and Greece (cited above) the Grand Chamber has in the meantime analysed the situation differently regarding Greece and, in Tarakhel (cited above), gone on to consider that there were also deficiencies in the reception facilities for asylum-seekers in Italy from the point of view of the Convention. However, in those two cases the Court reconfirmed its earlier case-law and maintained the principle developed in the decisions T.I. v. the United Kingdom and K.R.S. v. the United Kingdom (cited above) according to which there is in principle a presumption that each State Party observes its Convention commitments.

V. The existence of “arguable complaints” in the present case

13 The majority have arrived at the conclusion that the applicants’ complaints “would have warranted an examination on the merits before a national authority in proceedings satisfying the requirements of effectiveness laid down by Article 13” (see paragraph 194 of the judgment), given that “the asylum application lodged by the applicants in France had been rejected almost a year earlier” (see paragraph 190 of the judgment), and that, consequently, the applicants had no guarantee that they would not be returned to Serbia, where appalling conditions and no access to health care, housing or education awaited them (see paragraphs 113-15, 193 and 194 of the judgment).

14 Accordingly, the majority consider that there has been a violation of Article 13 taken in conjunction with Article 3 of the Convention: “[i]n view of the analysis of the Belgian system as in force at the material time, the Court concludes that the applicants did not have an effective remedy in the sense of one producing automatic suspensive effect and by which they could obtain an effective review of their submissions alleging a violation of Article 3 of the Convention” (see paragraph 220 of the judgment).

15 In my view, the majority have not taken sufficient account of the principles arising from our case-law set out above (IV) and have applied these erroneously to the present case.

16 In order for the guarantees under Article 13 of the Convention to apply in the present case, the complaints that the applicants’ return to France would expose them to a real and serious risk of treatment contrary to Article 3 of the Convention (see Soering , cited above, §§ 90-91; see point IV above) must be defined as arguable. The Court thus has the task of examining the requirement of arguable complaints with regard to the situation in France (see M.S.S. v. Belgium and Greece (cited above, §§ 341-43). A complaint may be regarded as arguable where it is not prima facie unfounded and warrants an examination on the merits by the appropriate national authorities (see paragraphs 187 and 188 of the judgment).

17 The majority appear to overlook in their reasoning the fact that France is a State Party to the Convention and that, according to our case-law (see point IV above), Belgium could, in the absence of any proof to the contrary, presume that France complied with its obligations under the Convention and would not expel the applicants to Serbia if there were a risk that they would be subjected to treatment contrary to Articles 2 and 3 of the Convention.

18. In the present case I see no evidence that would enable this presumption to be rebutted. As my colleague Judge Kjølbro observes in his dissenting opinion, we do not have any information to suggest that the asylum system in France fails to conform to the requirements of the Convention. Furthermore, the mere fact that the applicants had previously been the subject of a decision of the French authorities rejecting their asylum application is not sufficient either, in my view, to suggest that France would not protect the applicants’ Convention rights.

VI. Conclusion

19 Having regard to the foregoing, I conclude that the Belgian authorities could trust France to observe its Convention commitments. Consequently, the applicants’ complaints that their return to France would expose them to a real and serious risk of treatment contrary to Article 3 of the Convention do not appear to me to be arguable. In my view, there has not therefore been a violation of Article 13 taken in conjunction with Article 3 of the Convention.

DISSENTING OPINION OF JUDGE KJØLBRO

1 I respectfully disagree with the majority in their assessment of the applicants’ complaints about the conditions of reception and also the procedure for asylum and regularisation. In my view, there has been no violation of Article 3 of the Convention with regard to the conditions of reception. Nor has there been a violation of Article 13 in combination with Article 3 as regards the procedure for asylum and regularisation.

The conditions of reception

2 As mentioned in the judgment (see paragraph 140), the period relevant for the Court’s assessment is from 26 September 2011, when the applicants were required to leave the reception centre in Saint-Trond, until 25 October 2011, when the applicants voluntarily left Belgium for Serbia. The question is whether there was a violation of Article 3 of the Convention due to the conditions of reception during these 29 days.

3 It is important to note that the Belgian authorities had decided, after having obtained the consent of the French authorities and in accordance with the relevant EU legislation (Article 16 § 1 of Council Regulation (EC) no. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national), that the applicants were to be returned to France as the first asylum country responsible for assessing the applicants’ asylum request, and the applicants had been ordered to leave the country. However, the applicants refused to comply with the order and decided to remain in Belgium, and their stay was thus illegal according to domestic legislation.

4 A foreigner who wilfully disobeys a decision to leave a country and decides to remain in the country illegally cannot expect to be treated in the same way as foreigners who are residing in the country lawfully while their request for asylum or regularisation is being processed by the authorities. That being stated, it goes without saying that although they were illegally resident in Belgium the applicants were protected by Article 3 of the Convention.

5 Under Belgian legislation (the Reception Act) as it was interpreted at the relevant time and prior to the subsequent rulings of the CJEU in C ‑ 179/11, judgment of 27 September 2012, and C-79/13, judgment of 27 February 2014 (see paragraphs 105-106 of the judgment), the obligation to provide for the applicants’ material needs ceased to apply when a decision to return the applicants to France as the first asylum country had been adopted and they had been ordered to leave the country. Thus, the general obligation under domestic legislation for the Belgian authorities to provide for the applicants’ material needs no longer applied, as the applicants were unlawfully resident in Belgium (see paragraph 84 of the judgment). On the contrary, it was for the French authorities, in accordance with EU legislation, to care for the applicants and to provide for their material needs. In other words, the applicants no longer had a general right under Belgian legislation (the Reception Act) to have their material needs provided for in the same manner and at the same level as had been the case from 1 April 2011 until 26 September 2011.

6 In assessing whether Article 3 of the Convention was violated, it is important to notice that Article 3 of the Convention does not as such guarantee social and economic rights. More specifically, Article 3 does not guarantee a general right to appropriate accommodation or to assistance to provide for basic and material needs (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 249, ECHR 2011). Failure to provide persons with accommodation and material needs may, in exceptional circumstances, raise an issue under Article 3 of the Convention, in particular when such a right has entered into positive law (see M.S.S. v. Belgium and Greece , cited above, §§ 250-253 and 263).

7 A foreigner cannot, by wilfully disobeying an order to leave a country and deciding to stay in the country illegally, create a de facto situation where the country in question has a positive obligation under Article 3 of the Convention to provide for the foreigner’s material needs, including accommodation, health care, clothing and food, in the same way as foreigners who are lawfully resident in the country. That would, in my view, amount to creating an independent right to social and economic rights under Article 3 of the Convention.

8 The fact that the general obligation under domestic legislation (section 1 of the Reception Act) and EU legislation (Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum-seekers), as interpreted at the relevant time, to provide for the applicants’ material needs had ceased to apply from the moment the applicants’ stay in the country became illegal (see paragraph 84), did not imply that the applicants were left without access to any support from the Belgian authorities. They did have access to some support, albeit in a more restricted form and of a different and lower level.

9 Thus, on 5 October 2011 (see paragraph 47) the applicants were admitted to the transit centre in Woluwe-Saint-Pierre, where they stayed for two days. On 7 October 2011 (see paragraph 48) the applicants were assigned to the reception centre for asylum-seekers in Bovigny as their mandatory place of registration. However, according to the information provided by the authorities, the applicants never showed up at the Bovigny centre (see paragraph 49). For reasons unknown to the Court, the applicants did not wish to make use of the accommodation offered. In my view, there is no basis for questioning the information provided by the Belgian Government to the effect that the applicants did not turn up at the centre.

10 Furthermore, the applicants did have access to some social aid, irrespective of the illegal nature of their residence in Belgium. In particular, the applicants could have contacted the CPAS having territorial jurisdiction and asked for assistance in accordance with section 60 of the Reception Act (see paragraph 86). They could also have contacted the Fedasil and requested assistance in accordance with section 7 §§ 1 and 2 or section 25 § 4 of the Reception Act (see paragraphs 85 and 87). Furthermore, they could have requested urgent medical assistance and essential material aid from the CPAS in accordance with section 57 § 2 of the Act laying down organisational principles (see paragraph 72). This would in particular have been feasible had the applicants gone to the Bovigny reception centre for asylum-seekers, as they were encouraged to do. Furthermore, had their requests been rejected and assistance refused them, it would have been possible to challenge such a refusal before the employment tribunal (see paragraphs 88-91). The fact that the applicants did not show up at the assigned centre and that they failed to make use of available remedies should not be held against the respondent Government.

11 To conclude, and having particular regard to the interpretation of the domestic legislation at the relevant time, the accommodation offered to the applicants, the possibility to seek social assistance and the brief duration of the period in question, the required minimum level of severity under Article 3 has not been reached. Therefore, in my view, there has been no violation of Article 3 of the Convention as regards the applicants’ conditions of reception from 26 September 2011 until 25 October 2011.

The procedure for asylum and regularisation

12 The applicants complain that their removal, direct or indirect, to Serbia and the refusal to regularise their stay in Belgium amounted to a violation of Articles 2 and 3 of the Convention, in that it put their oldest daughter’s life at risk and placed all of the applicants at risk of inhuman and degrading treatment (see paragraph 173). Furthermore, they complain that they did not have access to an effective remedy, in violation of Article 13 of the Convention (see paragraph 174).

13 As regards the complaint concerning the refusal to regularise the applicants’ stay in Belgium, that is, the refusal to grant the applicants a residence permit for health reasons on the basis of section 9 ter of the Aliens Act, the applicants’ request was declared inadmissible by the Aliens Office on 30 September 2011 as the medical report submitted by the applicants in support of their request did not contain the necessary information, that is, it did not mention the degree of gravity of the illness in question as required by domestic law (see paragraphs 34 and 67-70). Furthermore, the applicants did not appeal against the decision by the Aliens’ Office.

14 By failing to submit a request in accordance with domestic legislation and by not lodging an appeal against the refusal, the applicants have not, in my view, exhausted domestic remedies (see Vučković and Others v. Serbia , no. 17153/11 and 29 other cases, § 72, 28 August 2012). Therefore, this part of the application should, as regards Articles 3 and 13, be declared inadmissible in accordance with Article 35 of the Convention.

15 The remainder of the applicants’ complaints under Articles 3 and 13 concern the alleged risk of inhuman and degrading treatment arising from their removal, direct or indirect, to Serbia, and the lack of an effective remedy to deal with their complaint. The core of the complaint is the alleged risk of ill-treatment in Serbia and the failure of the Belgian authorities to assess their asylum request.

16 Article 3 applies if the applicant has adduced evidence capable of proving that there are “substantial grounds for believing” that, if a measure complained of were to be implemented, the applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see M.S.S. v. Belgium and Greece , cited above, § 365, and Azimov v. Russia , no. 67474/11, §§ 112-113, 18 April 2013). Further, in this context Article 13 only applies if the applicant has an “arguable complaint” that there has been or will be a violation of Article 3 of the Convention (see M.S.S. v. Belgium and Greece , cited above, §§ 288 and 385).

17 The applicants had requested asylum in Belgium; however, the Belgium authorities did not assess the applicants’ asylum request. Instead, the Belgian authorities, in accordance with the relevant domestic legislation and EU legislation, decided that the applicants should be returned to France as the first asylum country responsible for assessing the applicants’ request for asylum. The applicants were not at risk of being returned to Serbia from Belgium. If they did not leave Belgium voluntarily, they could be returned to France. Therefore, the “substantial grounds” and the “arguable complaint” must be assessed in light of the situation in France (see M.S.S. v. Belgium and Greece , cited above, §§ 341-343). France had accepted the return of the applicants in accordance with the relevant EU legislation and had thus recognised its responsibility for the applicants as asylum-seekers; further, France is bound by the Convention.

18 There is no basis for alleging that the processing of asylum requests or the conditions of reception for asylum-seekers in France in general are deficient and not in conformity with the requirements of the Convention, quite the contrary (see M.S.S. v. Belgium and Greece , cited above, §§ 344 ‑ 61 and 364-68). Nor is there any basis for assuming that the applicants, in the specific circumstances of this case, would not be provided with the guarantees of Article 3 and 13 of the Convention were they returned to France. The mere fact that the applicants’ request for asylum in France had been rejected cannot in itself justify an assumption that the applicants would not be protected by Article 3 and Article 13 in France. On the contrary, it can be assumed that the applicants could have requested a reassessment of their asylum request in France on the basis of relevant new facts. Furthermore, the Court does not convincingly argue why the applicants had an “arguable complaint”, taking into account the situation in France.

19 In my view, there is therefore no basis for finding a violation of Articles 3 and 13 had the applicants been returned to France as the first asylum country.

20 That being stated, I should like to add another observation. Even assuming that the situation in Serbia is relevant for the assessment of whether Belgium has complied with its obligations under Article 3 and 13, it is necessary to assess the relevant background information on the Roma population in Serbia.

21 It is well documented that the general situation for the Roma population in Serbia is difficult and has been criticised (see, inter alia , reports of 10 September 2013 and 23 June 2014 from the Advisory Committee on the Framework Convention for the Protection of National Minorities ; reports of 15 November 2013, 24 January 2014 and 14 February 2014 from Landinfo ; report of 22 September 2011 from the Council of Europe Commissioner for Human Rights ; the country report of 8 April 2011 from the USDOS ; COI report of 1 March 2010 from the British Home Office ).

22 However, the fact that the general situation for Roma in Serbia is difficult and has been criticised is an insufficient basis for stating that all persons of Roma origin from Serbia are entitled to protection under Article 3 of the Convention against a return to Serbia. The general background information is, in my view, not even enough to allege that there are “substantial grounds” or “an arguable complaint”. This inevitably depends on an assessment of the applicants’ individual circumstances. Having regard to the specific circumstances of the case, including the nature of the information provided by the applicants to the Belgian authorities and their rejected asylum request in France, I find it questionable that there is a basis for alleging that there are “substantial grounds” or an “arguable complaint”; however, having regard to the reasons set out above, I do not find it necessary to take a final position on that question.

Conclusion

23 For the reasons set out above, I voted for finding no violation of Article 3 of the Convention as regards the conditions of reception, and no violation of Article 13 taken in conjunction with Article 3 as regards the procedure for asylum and regularisation. My main concern is the Court’s finding of a violation of Article 13 taken in conjunction with Article 3. In my view, the Court’s finding may have significant and negative consequences for the proper functioning of the cooperation between EU Member States regarding the processing of requests for asylum, including the return of asylum-seekers to the first asylum country in accordance with the relevant EU legislation. In practice, the judgment may be understood as imposing an obligation on EU Member States not only to assess whether an asylum-seeker may be returned to another EU Member State as the first asylum country, but also to assess and address the alleged risk of ill-treatment in the country of origin, even when there is no basis for criticising the proper functioning of the asylum procedure or the conditions of reception for asylum-seekers in the EU Member State which is the first asylum country.