Muskhadzhiyeva and others v. Belgium (application no. 41442/07)

ecthrPress release issued by the Registrar Chamber judgment1

Muskhadzhiyeva and others v. Belgium (application no. 41442/07)


Violation of Articles 3 (prohibition of inhuman or degrading treatment) and 5 § 1 (right to liberty and security) (second, third, fourth and fifth applicants)

No violation of Articles 3 and 5 § 1 (first applicant)

No violation of Article 5 § 4 (all applicants) of the European Convention on Human Rights

Principal facts

The applicants, Aina Muskhadzhiyeva, born in 1966, and her four children Alik, Liana, Khadizha and Louisa (respectively aged seven months, three and a half years, five and seven years at the material time and born in 2006, 2003, 2001 and 2000), are Russian nationals of Chechen origin and live in a refugee camp in Debak-Podkowa Lesna (Poland).

Having fled from Grozny in Chechnya they eventually arrived in Belgium on 11 October 2006, where they sought asylum. As they had spent some time in Poland, the Polish authorities agreed to take charge of them, by virtue of the European Council Regulation 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 Belgian authorities accordingly, on 21 December 2006, issued a decision refusing them permission to stay in Belgium and ordering them to leave the country. The Aliens Office summoned the applicants, who had left their accommodation centre, in order to serve the decision on them. On 22 December 2006 they were placed in a closed transit centre run by the Aliens Office near Brussels airport, known as “Transit Centre 127 bis”, where aliens (single adults or families) were held pending their removal from the country. Several independent reports drawn up in recent years have highlighted the unsuitability of the centre in question for housing children.

A request to release the applicants was rejected by the Brussels Court of First Instance on 5 January 2007 and again by the Brussels Court of Appeal on 23 January 2007. Between those two decisions the organisation “Médecins sans frontières” carried out a psychological examination of the applicants and found that the children in particular – and especially Khadizha – were showing serious psychological and psychotraumatic symptoms and should be released to limit the damage. On 24 January 2007 the applicants were sent back to Poland. On the same day they lodged a cassation appeal. By a decision of 21 March 2007 the Court of Cassation found the appeal devoid of purpose as the applicants had already been removed from the country. A report drawn up by a psychologist in Poland on 27 March 2007 confirmed Khadizha’s very critical psychological state and confirmed that the deterioration might have been caused by the detention in Belgium.

Complaints, procedure and composition of the Court

Relying on Article 3, Aina Muskhadzhiyeva and her children complained about the conditions of their detention in “Transit Centre 127 bis” for more than a month. Relying in particular on Article 5 §§ 1 and 4, they also complained that their detention had been unlawful and the remedy against it before the Court of Cassation ineffective, as they had been removed from the country before the court had reached a decision. The application was lodged with the European Court of Human Rights on 18 September 2007.

Judgment was given by a Chamber of seven judges, composed as follows:

Ireneu Cabral Barreto (Portugal), President,
Françoise Tulkens (Belgium),
Vladimiro Zagrebelsky (Italy),
DanutÄ— JoÄŤienÄ— (Lithuania),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey), judges,

and Sally Dollé, Section Registrar.

Decision of the Court

Alleged violation of Article 3

Examining first the fate of the four children, the Court recalled that it had already found the detention of an unaccompanied minor in “Transit Centre 127 bis” contrary to Article 3 and that the extreme vulnerability of a child was paramount and took precedence over the status as an illegal alien. It was true that in the present case the four children were not separated from their mother, but that did not suffice to exempt the authorities from their obligation to protect the children. They had nevertheless been held for over a month in a closed centre which was not designed to house children, as confirmed by several reports cited by the Court. The Court also referred to the concern expressed by independent doctors about the children’s state of health. It found that there had been a violation of Article 3 in respect of the four children.

The Court then went on to examine the mother’s case, reiterating that parents should not always be considered victims of the ill-treatment inflicted on their children. They might qualify for victim status in some cases, but only where there were special factors that made the parents’ suffering different in scale and nature from the emotional distress inevitable in close relatives of victims of serious human rights violations. In Aina Muskhadzhiyeva’s case the Court found it decisive that she had not been separated from her children. Their constant presence must have somewhat appeased the distress and frustration of their detention in the transit centre so that it did not reach the level of severity required to constitute inhuman treatment. There had therefore been no violation of Article 3 in respect of the mother.

Alleged violation of Article 5 § 1

The applicants were in a situation where it was in principle possible under the Convention to place them in detention (the Convention authorises the “lawful arrest and detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”). That did not mean, however, that their detention was necessarily lawful.

In so far as the four children were kept in a closed centre designed for adults and ill-suited to their extreme vulnerability, even though they were accompanied by their mother, the Court found that there had been a violation of Article 5 § 1 in respect of the children.

The Court saw no reason, on the other hand, to find the mother’s detention in breach of the Convention. She had been lawfully detained with a view to her expulsion from Belgium. There had therefore been no violation of Article 5 § 1 in respect of the mother.

Alleged violation of Article 5 § 4

It was true that the Court of Cassation had delivered its decision concerning the applicants’ request for release after they had been sent back to Poland. Prior to that, however, two courts having de facto and de jure jurisdiction had examined the request without delay while they were still in Belgium. The Court pointed out that it was sufficient in principle for an appeal to be examined by a single court, on condition that the procedure followed had a judicial character and gave the individual concerned guarantees appropriate to the kind of deprivation of liberty in question. That being so, none of the applicants had been the victim of a violation of Article 5 § 4.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants together 17,000 euros in respect of non-pecuniary damage.


The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (

Press contacts
Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) or

Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04)
Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30)
Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70)
CĂ©line Menu-Lange (tel: + 33 (0)3 90 21 58 77)

Nina Salomon (tel: + 33 (0)3 90 21 49 79)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.