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Belgium/ Council of State/ [2019] 244.268

Abdurahman Mohamed, alias Armiyas Tofer vs. Belgian State

Deciding Body type:
National Court/Tribunal
Deciding Body:
Council of State
Decision date:
17/02/2020

Key facts of the case:

Following the applicant’s declaration to the Guardianship Department that he was born on 5 February 2002 in Ethiopia, he was assigned a guardian on 21 February 2019. On 4 April 2019, the Immigration Office expressed concern about the applicant’s age, because to that service he is known under the alias Tofer Armiyas, who is born on 1 January 1998 in Eritrea. On 5 April 2019, the applicant underwent a medical examination (the so-called triple test, which is highly criticised in the profesional literature and at the supranational level due to the lack of reliability) to determine whether or not he is 18. The exam concluded that the applicant is 20,6 years old with a standard deviation of 2 years on 5 April 2019. The claim before the Council of State seeks to suspend in extreme urgency the implementation of the decision of the Minister of Justice of 12 April 2019 to terminate the applicant’s custody.

Key legal question:

The fifth complaint concerns the infringement of article 24(2) of the Charter of Fundamental Rights that stipulates that the best interests of the child must be the ‘primary consideration’ when public authorities or private institutions take decisions relating to a child. The applicant argues that not making use of the possibility of psycho-affective testing provided for in Article 3, last paragraph of the Royal Decree of 22 December 2003 implementing Title XIII, Chapter 6 “Guardianship of unaccompanied minors” of the Programme Law (I) of 24 December 2002 also leads to a disregard of the higher interest of the child.

Outcome of the case:

The Council of State does not consider the applicant’s mere allegation (that not making use of the option regarding a psycho-affective test as included in the Royal Decree leads to the disregard of the higher interest of the child, cf. art. 24(2) Charter) to be in itself enough to assume in a sufficiently concrete manner that article 51 of the Charter has been infringed, all the more so since it has been established earlier on in the case that the contested decision does not appear to infringe the principle of care or article 7 of the Guardianship Act (on guardianship of unaccompanied minors, which determines that in case of doubt about the results of the medical examination, the youngest age should be taken into account). The Council of State concludes that the applicant’s plea is not serious to the extent that the infringement of article 24(2) of the Charter is invoked.