13 October 2020
Author : Flavia Clementi
Avocats Sans Frontières publishes a study on the indirectly discriminatory impact of Belgian emergency policies on certain categories of the population, particularly vulnerable ones. The analysis, carried out as part of the project ‘Covid-19 Monitoring and Rule of Law’, relies on observation activities, as well as a set of interviews conducted by ASF in June and July 2020.
To limit the spread of Covid-19, the Belgian government took, at the start of the health crisis, a set of measures contained on March 23rd 2020’s ministerial ruling, aiming to reduce contact between people and imposing a general lockdown. 
These measures, seeming neutral at first, because applicable to the entire population, however indirectly had discriminatory consequences, in their enforcement on certain groups of vulnerable people. 
Several interviews conducted with social workers, mediation and surveillance bodies active in Belgium during the lockdown, as well as a documentary analysis; revealed that immigrants, prison inmates, homeless people, women victims of violence, the elderly and the handicapped, those economically vulnerable, and those living in deprived neighborhoods, indeed suffered more than others from the emergency sanitary measures.
This is due, partly, to a uniform response to the crisis, which only exacerbated pre-existing socio-economical inequalities. It is also imputable to differences in the enforcement of the measures, more severe on certain social groups.
In the first instance, the interruption or limitation of access to social assistance, to visas and asylum, caused by the generalized closure or digitization of essential services, has had the effect of further weakening the already vulnerable segments of the population to whom these services are addressed. This freezing of services has also triggered a ‘domino effect’, best illustrated by the emergence of a new population of homeless people who were unable to assert their economic and social rights during the lockdown period. Beyond the interruption of essential services, the general lockdown decided by the government has further degraded the condition of certain groups of people, hence not affecting the entire population in the same way. Those who could not stay “at home,” those held in prisons or detention centers, those in shelters, the homeless, and women victims of domestic violence due to lack of decent and safe housing paid a greater price. For them, compliance with lockdown measures has sometimes violated their human rights, such as the right to dignity or the prohibition of inhuman and degrading treatment. In other cases, lockdown was physically impossible.
In the second instance, indirect discrimination was also induced during the police checks of compliance with lockdown measures. Such abuses were observed on several occasions and appeared to result both from the vagueness of the government’s measures and from a significant scope for interpretation left to the police. Cross-analysis of the incidents collected during the interviews, supplemented by documentary monitoring, revealed a practice of profiling in the application and monitoring of measures, or at least a tendency to target certain groups of people more heavily based on their membership in specific social strata and ethnic groups, or specific neighborhoods and areas.
As the European Court of Human Rights instructs, such discrimination, if it can be proven, entails the responsibility of the Belgian State. Indeed, the latter did not take into account the existing inequalities within society when managing the crisis and did not qualify the measures to protect these categories of vulnerable people, by amplifying economic and social differences.
 Measures that are neutral in their formulation may nevertheless have discriminatory effects on certain groups of people when implemented. These discriminations are classified as ‘indirect discrimination’ by European and Council of Europe law.