Aarrass v. Belgium: ECtHR holds Belgium’s due diligence renders application inadmissible

Thursday, September 30, 2021

On 30 September 2021, the ECtHR published its decision for the case of Aarrass v Belgium (Application no. 16371/18). The Court unanimously declared the application inadmissible.

The case concerned a Moroccan citizen (born in the Spanish enclave of Melilla) that moved to Belgium in 1978 where he obtained the Belgian nationality. Following an international arrest warrant issued by the Moroccan authorities, the applicant was arrested in Melilla and extradited to Morocco in 2008, where he was sentenced to twelve years’ imprisonment by the Rabat Court of Appeal in 2012.

Following a decision by the Brussels Court of First Instance, that ruled that the Belgian state was to provide consular protection to the applicant, the Belgian authorities contacted their Moroccan counterparts and requested permission to visit the applicant. This was only granted on one occasion in October 2015. Meanwhile, in 2017 the Court of Cassation quashed the Brussels Court of Appeal decision which had confirmed the first instance decision on the need to provide consular protection and referred the case back to the Court of Appeal of Liège, where proceedings are still pending.

Invoking Articles 1 and 3 of the Convention, the applicant complained that Belgium had breached its positive obligation to grant him consular protection in an attempt to put an end to the serious ill-treatment that he suffered during his imprisonment in Morocco. The case raised the question of whether Belgium had a positive obligation to grant consular assistance to the applicant in order to prevent such treatment.

Firstly, the Government raised a plea of inadmissibility on the ground of non-exhaustion of domestic remedies, but the Court did not consider that the continuation of the proceedings constituted an effective and appropriate remedy for the applicant and dismissed the objection. A further objection of inadmissibility on account of non-exhaustion of remedies was also dismissed, while a third objection regarding Belgium's jurisdiction was not examined as the Court found that the case was in any event inadmissible due to the diligent actions that the government had undertaken. In this line, the Court noted that the Belgian authorities had not remained passive or indifferent; on the contrary, they had approached the Moroccan authorities on several occasions, actively seeking a change in the applicant’s situation. Even if these efforts were not successful and did not have any impact on the applicant’s conditions of detention, that was the result of the systematic refusal of the Moroccan authorities, who had exclusive control over the applicant. In light of the foregoing, the Court declared the application inadmissible.

Based on an unofficial translation by the EWLU team

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