ECtHR decision on the detention of a mother with her three children in a closed center for four months. The family had been refouled after applying for asylum at the border at Brussels Zaventem airport. The European Court of Human Rights condemned Belgium on the basis of articles 3 and 5 § 1 of the Convention.
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Decision n° 166/2013 of 19 December 2013, Constitutional Court (Belgium)
On 21/10/2021 in
Decision of the Constitutional Court on the action for annulment brought by a coalition of associations on the legality of article 74/9 of the law of 15 December 1980. The Court confirmed the legality of this article and clarified its scope, finding that the detention did not violate the child’s fundamental rights, including the right to family life and to protection from all forms of inhuman or degrading treatment.
Decision n° 251.051 of 24 June 2021, Council of State (Belgium)
On 21/10/2021 in
Final decision of the Council of State on the action for suspension and annulment brought by a coalition of associations after the publication of the Royal Decree of 22 July 2018 establishing the modalities of detention of families in migration. The Council of State decides to maintain the provision that allows the deprivation of liberty of families for a maximum period of 4 weeks and declares itself not competent to pronounce on the concrete measures for the functioning of the family homes.
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, ECtHR, Application No. 13178/03, Judgment of 12 October 2006
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UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)
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The Committee considers that the elements to be taken into account when assessing and determining the child’s best interests, as relevant to the situation in question, are: the child’s views; the child’s identity; the preservation of the family environment and maintaining relations; care, protection and safety of the child; situation of vulnerability; the child’s rights to health and to education.
UN Committee on the Rights of the Child (CRC), General comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin
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The objective of this general comment is to draw attention to the particularly vulnerable situation of unaccompanied and separated children; to outline the multifaceted challenges in ensuring that such children are able to access and enjoy their rights; and, to provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child.