CEDH · CASELAW;CLIN;ENG — 18 juillet 2023

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Belgium - 49255/22 Judgment 18.7.2023 [Section II] Article 6 Enforcement proceedings Article 6-1 Access to court National authorities refused execution of immediately enforceable order requiring State to provide asylum-seeker with accommodation and material support: violation Article 46 Article 46-2 Execution of judgment General measures Respondent State required to resolve systemic problem of national authorities’ capacity to comply with asylum-seekers’ legal right to accommodation, including final judicial decisions ordering such compliance Facts – On 15   July 2022 the applicant, a Guinean national who had arrived in Belgium three days earlier, filed an application for asylum with the initial reception centre for international protection applicants. He then went to the Federal Agency for the reception of asylum-seekers (“Fedasil”) with a view to obtaining a place in the reception network but was turned down on the grounds that the reception system was saturated. On 22   July 2022 he obtained a decision from the President of the Employment Tribunal by way of an immediately enforceable order enjoining the Belgian State, notwithstanding any appeal, to grant him accommodation and material support. That decision, which was served by a bailiff on 29   July 2022, became final on 29   August 2022. It was ultimately enforced on 4   November 2022 when the applicant was assigned accommodation in a reception centre after the Court had indicated to the Belgian Government, under Rule   39 of the Rules of Court, that the applicant should be provided urgently with housing and support to meet his basic needs. Law – Article   6 (civil): 1) Applicability – In Belgium, applicants for international protection had a right to material support and accommodation. That right had been recognised by the Employment Tribunal in respect of the applicant in its order of 22   July 2022. Accordingly, the applicant had a right for the purposes of Article   6 §   1 of the Convention. Secondly, that right was of a “civil” nature within the autonomous meaning given to that term by the Court’s case-law. Lastly, the aim of the order in question had been to rule on the same right as the one that would also have been at stake in further proceedings on the merits. It had, furthermore, been immediately enforceable. Moreover, on the date the application had been lodged, the proceedings on the merits had not been pursued. Conclusion : Article   6 applicable. 2) Merits – The order’s enforceability had required that the State execute it on its own initiative pursuant to domestic law. In order to assess whether the time taken to enforce the order had been reasonable for the purposes of Article   6, the Court had to take into account the conduct of the competent authorities, the complexity of the enforcement process, and the conduct of the applicant. As to the Belgian authorities’ conduct, Fedasil and the State had not, before the Employment Tribunal, contested the right to asylum claimed by the applicant. Following the order requiring that the applicant’s case be taken up, Fedasil had not lodged a third-party application to have that order set aside and had failed to enforce it prior to the interim measure granted by the Court. It followed that the applicant had had no choice but to take legal action and then to apply to the Court to obtain recognition of a right his entitlement to which had never been contested. Moreover, the order had not been enforced spontaneously but only as a result of an interim measure granted by the Court. Concerning the complexity of the enforcement, according to the Government, since the summer of 2021 the reception capacity of the network managed by Fedasil had proven insufficient to cope with the increase in the number of applicants for international protection, making it materially impossible for the State to enforce court orders. The Court could not but note a significant increase – up more than 42% on 2021 – in the number of applications for international protection in Belgium in 2022 (36,871). In addition, Belgium had taken in 65,000 Ukrainian nationals between 10 March 2022 and 31 December 2022. Those facts bore eloquent witness to the scale of the challenges that the Belgian State had had to confront. Moreover, the Court could hardly criticise the Belgian authorities’ decision to focus the network’s accommodation capacity on the most vulnerable individuals, thereby delaying the accommodation of applicants for international protection with the same profile as the applicant’s. That had been a prioritisation decision that had made it possible to provide accommodation and assistance to the vast majority of families with children, unaccompanied minors and persons suffering from specific health conditions throughout the period required for the examination of their asylum requests. The Court further could not fail to note the substantial efforts deployed by the Belgian authorities to contribute to the financing of associative schemes, create additional accommodation, recruit staff and shorten processing times for asylum applications. Nevertheless, the right protected by Article 6 of the Convention had to be interpreted in the light of the Preamble to the Convention. That Preamble referred to the rule of law, one of the fundamental aspects of which was the principle of legal certainty, which required, in particular, that where the courts had finally determined an issue, their ruling should not be called into question. In that regard, the circumstances of the present case were not unusual and revealed a systemic failure on the part of the Belgian authorities to enforce final judicial decisions concerning the reception of applicants for international protection. While the Court was aware of the difficult situation the Belgian State was facing, it could not accept that the time taken by the Belgian authorities in the present case to enforce a court order aimed at protecting human dignity had been reasonable. Furthermore, that systemic failure had heavily over-burdened the operation of a national court and that of the Court itself. As to the applicant’s conduct, no lack of diligence on his part had apparently contributed to delay the enforcement of the order of 22   July 2022. Having regard to the above, there had not been a “mere” delay on the part of the Belgian authorities, but rather a clear refusal to comply with the orders issued by the domestic court, which had impaired the very essence of the right protected by Article   6 §   1. Conclusion : violation (unanimously). Taking into account the change in the applicant’s situation since the interim measure had been granted and the fact that he was not requesting that it be maintained, the Court decided to lift the interim measure indicated to the Government under Rule   39 of the Rules of Court on 31   October 2022. Article 46: Many cases similar to the present one had recently been brought against Belgium for failure to enforce Employment Tribunal orders in connection with the reception of applicants for international protection. The evidence before the Court revealed a systemic problem in the respondent State concerning the authorities’ capacity to comply with its own domestic legislation on asylum-seekers’ rights to accommodation, including with final court decisions ordering such compliance. Although it was aware of the difficulties the Belgian authorities had been facing, the Court found that such a response was incompatible with the principle of the rule of law which is inherent in the system of protection established by the Convention. It was the respondent State’s responsibility to take appropriate measures to put an end to this situation. Article   41: finding of a violation sufficient in respect of just satisfaction. (See also M.K. and Others v.   France , 34349/18 et al., 8   December 2022, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . 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