Introduction

The case concerned the return of children to Algeria. One of the victims died during the proceedings before the Committee. The main question was whether her parents could continue her communication on the grounds that it raised questions of principle concerning the effectiveness of the remedies available in migration matters, that the violation of her rights was not extinguished by her death, and that her legal representatives and brother, who is also a child, are still in the State party and are affected by the decisions taken. The Committee declared the communication moot. ¹

Facts

The case concerned the return of two children, F.M. and H.M, to Algeria. The claim was submitted by the parents of the children, S.M. and A.T.M. F.M suffered from severe West’s syndrome, respiratory issues, and complex needs requiring specialized care, notably percussive physiotherapy, which is unavailable or inadequate in her home country, making return to Algeria potentially fatal.

In 2013, S.M. submitted on behalf of F.M. an application for regularisation in Belgium under domestic legislation on the entry, temporary and permanent residence and removal of aliens, which grants foreign nationals with severe illnesses the right to apply to stay in Belgium if they cannot be treated in their country of origin. The Immigration Office rejected the application three times (2015, 2016, 2020). Each rejection was subsequently annulled by the Aliens Litigation Council (2015, 2020, 2021) primarily for lack of proper reasoning and because the medical adviser (of the Immigration Office) had not substantiated his claim that a percussive devise was not an absolute necessity for F.M. (para 2.6). The protracted process, taking seven years to obtain a final decision, led the family to turn to the Committee in 2020, arguing that domestic remedies were ineffective and that the excessive length of proceedings violated the victims’ rights under the Convention on the Rights of the Child (CRC), including her right to non-discrimination, protection of best interests, and right to health.

After the claim was made before the UN Committee on the Rights of the Child but before the Committee adopted its decision, F.M. died from health complications. Parents expressed their interest to continue the claim on her behalf. They underlined that the case raised important questions about the effectiveness of remedies in migration matters, in particular the residence permit application submitted for F.M. due to her severe health problems, the authorities’ assessment of available care in Algeria, and the excessive length of domestic proceedings.

Issues

The main question at the heart of this case concerns the question whether parents or close relatives can continue a claim before the Committee after the death of the victim. The authors, the parents of F.M., informed the Committee of their wish to continue with the communication on the grounds that it raised questions of principle concerning the effectiveness of the remedies available in migration matters, that the violation of F.M.’s rights was not extinguished by her death, and that her legal representatives and brother, who is also a child, are still in the State party and are affected by the decisions taken. The authors claimed to have a sufficient or legitimate interest in continuing with the communication, as representatives of F.M. and H.M., ²as they have been involved in the national proceedings for over seven years and have fought for F.M. to receive the necessary care, with a degree of legal certainty, in line with her interests.

Committee’s Decision

The Committee declined to examine the merits, treating the matter as moot after F.M.’s death. It noted that the communication largely focuses on alleged violations of F.M.’s rights under the CRC resulting from decisions by the Immigration Office not to grant her a residence permit on the basis of her state of health. The Committee considered, however, that the issues raised in the initial communication, in particular, the treatment by the national authorities of the application for a residence permit submitted on behalf of F.M. in connection with her state of health, the authorities’ assessment of the availability in Algeria of the care that F.M. required, and the length of the domestic proceedings concerning her, were closely linked to the parents’ claim that F.M. should have been granted such a permit. The Committee therefore found that, as F.M. has died, this part of the communication has become moot and that as a consequence the authors no longer had sufficient grounds for continuing with the communication insofar as it was submitted on behalf of F.M. In accordance with rule 26 of its rules of procedure under the Optional Protocol, the Committee decided to discontinue this part of the communication.

The decision is interesting in both how it misinterprets the European Court of Human Rights (ECtHR) jurisprudence allowing relatives to continue claims on behalf of deceased victims and how it actively ignores the actual approach of the Court.

In its decision, the Committee relies on X. v France, decided by the ECtHR, in which the Court allowed parents of a child who had lodged a complaint before the Commission but died before the matter reached the Court to continue proceedings on his behalf. This is rather surprising because the Committee appears to cite the case as authority for declaring the case moot. In fact, the ECtHR in that case found that although in cases where a parent has requested to continue a case of a deceased child, its predecessor - the Commission - has sometimes struck out of its list cases concerning compliance with the reasonable time requirement laid down in Article 6 para. 1 of the Convention, finding such complaints to be ‘so closely linked to the person of the deceased’ that the heirs could not claim to have a sufficient interest to justify the continuation, the Court in the same breath takes a different view and accepts that Mr X’s father and mother are now entitled to take his place.

In this regard, X. v France marks a shift in case law. From then on, the Court accepts that close relatives can continue the deceased victim’s claim. The Court, in principle, allows that an application lodged by the original applicant before his or her death may be continued by heirs or close family members expressing the wish to pursue the proceedings, provided that they have a sufficient/legitimate interest in the case. Since 1992 when X was decided, such interest has been recognised to parents in López Ribalda and Others v. Spain [GC], where the deceased’s right to privacy and video-surveillance in the workplace was at stake; in Malhous v. the Czech Republic (dec.) [GC], a procedural claim where a nephew (and official heir) continued his uncle’s claim alleging lack of an independent and impartial tribunal; and Tagiyev and Huseynov v. Azerbaijan, a freedom of expression violation pursued by the applicant’s widow.

The type of the claim appears to make no difference to the permission to continue. Whether complaints are substantive (alleging mistreatment or detention) or procedural (length of proceedings as in the case of X. v France or indeed the facts in F.M. in this case) appears irrelevant to the Court’s decision-making and there is no longer any assessment of whether the complaint is ‘closely linked to the person of the deceased’.

The only situations in which the continuation of a claim is not allowed are limited to cases where no one has come forward with a wish to pursue the application or the persons who have expressed such a wish are not heirs or sufficiently close relatives of the applicant and cannot demonstrate that they have any other legitimate interest in pursuing the application. In these circumstances, the Court will strike the application out of its list (Léger v. France [GC], 2009; Hirsi Jamaa and Others v. Italy [GC], 2012). Therefore, it is the quality of the relationship, rather than the nature of the claim, that determines whether proceedings may be continued. Thus, widows and children, parents, a nephew who was also an heir (but not, if only a niece in similar circumstances), and unmarried partners have all been allowed to pursue the application. By contrast, a former wife who had divorced the applicant twelve years before his death and had no close contact with him thereafter was not allowed to continue proceedings.

It is unfortunate that the Committee actively ignores or misinterprets this jurisprudence, especially given the authors of the communication rely on it at length. It refers to the case law that has been overruled and is no longer valid law. In fact, the ECtHR jurisprudence has been so generous that the argument of the claim being ‘closely linked to the person of the deceased’ is only invoked in cases where the deceased started domestic proceedings but died before the proceedings at international level (before the ECtHR) were lodged. Yet, even in such cases, where the victim has died before the introduction of the application, his relatives can bring a claim effectively arguing to be ‘indirect victims’. In such cases, the Court has agreed that spouses and children ‘have an interest of their own to ensure that the [deceased’s] right to privacy is respected even if he died before the final domestic decision, as any statement violating this right not only affected the deceased’s reputation but also that of his family.’ Armoniene v Lithuania (2008).

Instead of engaging with this case law, the Committee relies on a decision of the Committee on the Rights of Persons with Disabilities. The claim concerns a 92-year-old national of Spain who had died after the initial submission but before the Committee had a chance to render its decision. The deceased’s daughter wanted the Committee to continue its consideration of the case, alleging that the state party had not provided a satisfactory response to the human rights violations alleged by the author. The Committee noted that the author’s death had rendered the present communication devoid of purpose and decided to discontinue the consideration of the communication.

The reliance on a decision of another treaty body, as well as active ignorance of the ECtHR jurisprudence, suggests that the CRC is following the approach of other UN Treaty Bodies, which are taking a stricter approach to the question of what happens to communications after the death of the victim. These are considered moot. Since close relationship with the deceased appears to be irrelevant to the assessment before UN Treaty Bodies, the only element that remains currently uncertain is whether the assessment depends on the claim being ‘closely linked to the person of the deceased’. Given we have no jurisprudence from other bodies to understand what claims may be ‘closely linked’ and which not, and how that distinction should be made, it remains to be seen whether the Committee plans to develop this aspect of its jurisprudence or whether it will consider all claims involving a deceased to have become moot.

Finally, the decision is striking also since it potentially conflicts with the new General Comment no. 27 on Access to Justice for Children which calls on states to adapt their rules and procedures so as to make them more child-friendly and to ensure that children’s claims can be heard. The draft General Comment proposes that four principles - availability, accessibility, adaptation, and effectiveness – should guide the approach to facilitating access to justice for children. Applying these appropriately would ensure that children have access to effective remedies and that they are provided genuine or tangible access to justice. The draft General Comment focuses both on access to domestic courts as well as at international level, the level of last resort, which represents the final opportunity for those who have been unsuccessful in claiming their rights at domestic level to see their rights protected. If the Committee were to follow its own General Comment, therefore, one would expect a more generous approach to admissibility. In particular, we would expect that children are given more leeway and allowed more scope to introduce claims, which otherwise would not be acceptable, or to have lower thresholds to meet in relation to exhaustion. This appears to be the case in a number of cases: eg in relation to victim status in climate cases (Sacchi), where the Committee followed the approach of the Inter-American Court of Human Rights, or indeed, in relation to exhaustion of domestic remedies in education cases (A.E.A v Spain), where the Committee followed the approach of the ECtHR in relation to measuring ineffectiveness of domestic remedies and held the proceeding unreasonably prolonged after less than a year. Yet, in S.M. and A.T.M., the Committee does not follow the jurisprudence of other human rights courts and instead adopts a narrower approach. Perhaps, the Committee’s view is that once a child has died, there is no basis for a child-friendly approach, and the principles of the General Comment guiding access to justice no longer apply.

Whatever the case is, the decision represents an important precedent both within UN Treaty Body jurisprudence, and in particular, the CRC. In children’s rights case law, this decision suggests that parents can no longer count on continuing their children’s claims in case of their death, even if they (argue they) have a legitimate interest. In UN Treaty Body jurisprudence, the decision adds one more authority to the practice that a claim is likely to be ruled moot in case of the death of the victim.