M.D. and M.A. v. Belgium (no. 59689/12) [Articles 3 & 13 ECHR], 19 January 2016

Tuesday, January 19, 2016

The case of M.D. and M.A. v. Belgium relates to a Russian couple who lodged a first claim for asylum in Belgium in 2007. The Immigration Office considered the claim inadmissible, reasoning that a personal vendetta did not amount to a ground for asylum. The Commissioner General for Refugees and Stateless Persons upheld the refusal upon appeal finding that the applicants’ account lacked credibility. They requested a cancelation of this decision from the Conseil d’Etat but failed to attend the hearing and were then notified of an order to leave the territory.

The applicants lodged three more asylum claims. The Immigration Office refused to consider these on the basis that no new evidence or elements had been raised which showed serious indications of a well-founded fear of persecution or serious harm, since the previous asylum application. These decisions were upheld in appeals to the Council of Aliens Law Litigation under the extreme urgency procedure, with actions for annulment also being dismissed. In September 2012, the ECtHR granted interim measures preventing their deportation to Russia. The applicants alleged that they would be subject to ill-treatment contrary to Article 3 ECHR upon return to Russia.

The Court noted that the procedures followed by the Belgian asylum authorities in this case, by refusing to consider the fourth asylum claim, was consistent with domestic law. However the approach taken to the consideration of whether there were new elements was too restrictive, failing to meet the standard of careful and rigorous examination required to ensure effective protection against Article 3 harm. The evidence put forward as new material was rejected based on the fact that according to the date it could have been produced in an earlier claim, with no assessment of its relevance, authenticity or probative value. The explanations of the applicants as to why they could not provide these documents earlier were also not considered. This imposed an unreasonable burden of proof on the applicants. In the absence of a review by the national authorities of the risk incurred by the applicants, in view of the documents submitted in support of their fourth asylum application, the authorities did not have sufficient evidence to be assured that they would not be at risk of Article 3 harm if deported to Russia.  As such, failing to do so would lead to a violation of Article 3 ECHR.

Based on an unofficial ELENA translation.

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Burden of proof
Effective remedy (right to)
Inadmissible application
Inhuman or degrading treatment or punishment
Subsequent application