“This judgement is not the beginning of the end of family detention in Belgium but the end itself”


“This judgement is not the beginning of the end of family detention in Belgium but the end itself”

On Tuesday 19 January, Belgium was condemned by the European Court of Human Rights (ECtHR) in Strasbourg for the detention of a Chechen family of four children and their mother in a closed reception centre. Having fled from Chechnya to Poland, they eventually arrived in Belgium on 11 October 2006, where they sought asylum. However, in accordance with the Dublin regulation, the Belgian authorities served them with a deportation order to Poland and placed in a closed transit centre. The ECtHR ruled that the detention of the children in this closed centre constitutes a violation of Article 3 of European Convention on Human Rights (ECHR) and awarded the applicants 17, 000 euros damages.

ECRE interviewed Mr. Alexis Deswaef, lawyer of the Muskhadzhiyeva family.

What implications will this judgement have for the detention of families?

Alexis Deswaef: I think that with this decision of the European Court of Human Rights (ECtHR) it is impossible for Belgium to continue to detain families in closed centres. In October 2006 Belgium was condemned by the ECtHR in the Tabitha case, in which a 5 years old child who had arrived alone was detained in a closed reception centre. After this judgement Belgium stopped the detention of unaccompanied minors. For two years we have been trying to convince the national judges that the conclusions of the Tabitha case should also be applied to the cases of family detention but they disagreed. They argued that in the Muskhadzhiyeva case the mother was present so she would protect her children from the traumatic consequences of detention. I challenged this position in the Court of Appeal but the

judge there was not willing to listen to my arguments and to the medical report produced by Médecins Sans Frontières (MSF) on the psychological harm which detention incurred on the children. Upon reading the part of the report, which describes how little Khadizha bumps her head against the floor until she becomes numb, the judge blamed me of pleading on opportunity and not on the legality of the detention. Thus, my appeal was dismissed.

I took the matter to the Belgian Supreme Court but just before the hearing, the family was expelled to Poland with other Dublin cases and thus the case was not pursued further by the Court. I decided to lodge an appeal to the ECtHR using the same arguments and evidence that I did in Belgium, namely that the cases of Tabitha and Muskhadzhiyeva are similar and thus the detention of the children is a violation of Article 3 of ECHR. I also attached the MSF report. The ECtHR explicitly made a reference to the Tabitha case and to the medical report in its verdict. It confirmed that the detention of families with children contradicts the ECtHR. With the judgement of the court of 19.01.2010 I see no other solution for Belgium but to stop detaining families just as it stopped detaining unaccompanied minors after 2006. Tabitha was a first victory but now we have a big one for all children.

If tomorrow there is a new family, which is detained, their lawyers can go to the national judges and show them the ECtHR verdict and the judge will have to order the family’s release because the judgements of the ECtHR must be implemented. This judgement is not the beginning of the end of family detention in Belgium but the end itself.

“Tabitha was a first victory but now we have a big one for all children”

What about consequences beyond Belgium?

Deswaef: I definitely think there will be consequences beyond Belgium. For example in France, they are also putting children in detention (‘centres de retention’) which

are certainly not better than the Belgian ones. Now we can expect French lawyers to take up this issue to their national courts and, eventually, to the ECtHR. However, I would suppose the governments would take measures in advance and change the law so as to avoid the humiliation of being condemned by the ECtHR. It is clear that the Court will respect its previous judgements.

Do you think the matter can be resolved at the EU level?

Deswaef: I think Belgium should certainly use its EU Presidency to push for EU-wide

legislation prohibiting the detention of families. In my opinion, the current changes proposed in the recast Reception Conditions Directive do not go far enough. They envisage the prohibition of detention of unaccompanied minors only. Regarding the detention of accompanied children, they rely on the notion of ‘best interest of the child’, which is too general and subjective. One country may argue that by painting the walls of the detention centres pink for the girls and blue for the boys it has fulfilled its obligations to make the centres child-friendly.

We must have a general ban on detention valid for all children. It is of common interest to all EU countries to find a solution to host children in open centres and provide alternatives to detention.

“Belgium should use its EU Presidency to push for EU-wide legislation prohibiting the detention of families”

How do you see Europe’s role in the promotion of human rights?

Deswaef: The EU must play a leading role on the world stage regarding in the defence of human rights. The EU accession to the European Convention on Human Rights, which will be possible now that the Treaty of Lisbon has entered into force, is very important because this will force the EU to respect the ECHR in all her acts. Member States are afraid of the implications but we, in Europe, have a moral responsibility to serve as a model of human rights for the rest of the world. It is impossible to have the authority to say how we think things should happen anywhere else if we do not put our own house in order first.