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On January 23rd 2009, Ms. Kanagaratnam and her 3 minor children M. , G., A. claimed asylum at the passport control of the airport of Brussels (art.50ter law December 15th 1980). They were refused entry and ordered to be deported (art. 52/3 §2) because they claimed asylum without possessing a valid passport and visa (art. 2 §2). An order for their detention in the immigration center “127 bis” (Steenokkerzeel) for 2 months was taken (art. 74/5 §1 2o) because they claimed asylum without possessing a valid passport and visa.
The immigration detention center ”127 bis” (Steenokkerzeel) was visited by the CPT (1997 visit report, 2005 visit report), by the Commissioner for Human Rights (2008 visit report CommDH(2009)14) and by the LIBE commission of the European Parliament (2007 visit report see below).
On March 17th 2009, the court CCE (Conseil de contentieux des étrangers) rejected their appeal of the denial of their asylum applications by the Commissioner general for refugees and stateless persons (CGRA) on February 23rd 2009. On March 20th 2009, the police attempted to deport them to the Democratic Republic of Congo.
On March 20th 2009, Ms. Kanagaratnam and her 3 children filed an application with the ECHR on the ground that their deportation to Sri Lanka via DRC will be a violation of article 3 of the Convention. They added that their detention was a violation of article 3 and 5-1-f) of the Convention. The Court requested the suspension of the deportation order (Rules art.39). On the same day, an order of detention of the family for 2 months was taken on the basis that they refused to board the plane to DRC.
On March 23rd 2009, the family filed a 2nd asylum claim. Immediately, another order of detention was taken for 2 months (art. 74/5 §1 2o). During their whole detention, the family made 2 requests to be released (art. 71§2) which were both denied by the appeal court of Brussels. The 2 appeals to the supreme court were also rejected. On May 4th 2009, the family was released by administrative decision. On September 2nd 2009, the family was granted refugee status by administrative decision of the Commissioner general for refugees and stateless persons (CGRA).
On November 25th 2009, the application was communicated to the agent of the Kingdom of Belgium with questions to be answered within 16 weeks. On December 13th 2011, the 2nd section of the Court found a violation of articles 3 and 5-1 for the 3 children on the ground that the immigration center “127 bis” was not tailored for their detention (Judgment Muskhadzhiyeva v. Belgium (41442/07) §63 and §75). It also found that the detention of Ms. Kanagaratnam from March 23rd 2009 to May 4th 2009 was “arbitrary“ in violation of article 5-1 because of the length of her detention in a facility not tailored for families. The Court awarded the applicants €46,650 in moral damages and €4,000 in legal fees. The applicants were represented by Me Zouhaier Chihaoui (Brussels).
Mr. Tristan Wibault of the NGO Belgium Committee to Help Refugees (Comité Belge d’Aide aux Réfugiés) found the judgment to be a positive development of the case-law regarding the detention of asylum seekers.
Mr. Christian Pascaud was born on February 8th 1960 in the village of Saint-Emilion. On April 8th 1961, C.P recognized the applicant as his son even though it was public knowledge that W.A was the father.
On October 24th 2000, the applicant start legal proceeding to annul the recognizance of C.P and be recognized by the court as the son of W.A. On November 12th 2001, a court ordered DNA test confirmed that W.A was the father of the applicant with a chance of 99.999%. On March 7th 2002, W.A died.
On September 24th 2006, the appeal court of Bordeaux dismissed all the claims of the applicant. On October 17th 2007, the supreme court (Cour de cassation) rejected his appeal.
On April 15th 2008, the applicant submitted his case to the European Court of Human Rights arguing that the refusal of the court to recognized him as a son of W.A was a violation of articles 8 and 14 of the Convention. He added that the lack of recognizance was also violation of article 1P1 and the lack of remedies a violation of articles 6-1 and 13. The applicant was represented by Me Bertrand Favreaux (Bordeaux).
On September 28th 2009, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. On May 6th 2010, the applicant submitted his observations and requested a public hearing (see below). The request was denied.
On June 16th 2011, the Court found a violation of article 8 of the Convention on the ground that the interest of the applicant to be recognized as a son of W.A outweigh the common interest to legal certainty. It awarded €10,000 for legal fees and €10,000 for moral damages. The amount of material damages will be evaluated at a later date.