ECtHR - Firoz Muneer v. Belgium, Application no. 56005/10, 11 July 2013

Facts:

The applicant, an Afghan national, applied for asylum in Belgium in 2009 without any identity papers. The immigration authority refused him the right to stay and ordered his removal pursuant to lack of jurisdiction under the Dublin Regulation, as he had entered the EU from Greece. The decision was accompanied by an order to remain in a detention centre. He appealed unsuccessfully against this decision. After he had refused to board a plane to Athens his re-detention was ordered for a maximum period of two months. On 1 February 2010 he lodged an application for release and subsequently the Court of First Instance ordered his immediate release on the grounds that the authorities did not take into account the real risk he’d encountered if returned to Greece.

The Court of Appeal upheld that judgement. The State appealed against that judgement while the applicant remained in the detention centre. The Cassation Court overruled that judgement and referred it back to the Court of Appeal which, sitting in a different composition, found that, since the detention measure had been extended in the meantime, the appeal against the initial decision had become without object. The applicant appealed against this new detention order, and was again successful as the appeals court found that he would risk treatment contrary to Article 3 if he were deported to Greece. At the expiration of the two months, the applicant was released before the Cassation Court could decide on the appeal lodged by the state. In December 2010 he submitted a second application for asylum, which was rejected and was given subsidiary protection status instead.

Decision & reasoning:

Concerning the applicant’s allegations under Article 5 para 1, the Court observed that the applicant, following his refusal to embark to Athens on 29 January 2010 and until 26 March 2010, was subjected to an administrative measure of deprivation of liberty, predicted in the national laws of Belgium [56]. The State appealed against the order of first instance that ordered the release of the applicant. As the Court highlighted, this possibility did not result from the law but from the jurisprudence of theCassation Court. It further noted that the jurisprudence of the Cassation Court did not allow the State to keep the foreigner in detention beyond the time limits prescribed by the law of foreigners, namely the time necessary for the execution of the removal and as long as this removal was possible and did not deprive the interested parties of seeking their release at regular intervals.  The above mentioned jurisprudence was neither unreasonable nor arbitrary [61]. Furthermore, concluding that the interpretation of domestic legislation in this manner was not unknown to the applicant, the Court considered that the criterion of “lawfulness” set by the Convention was satisfied in this case [62].

Regarding the bad faith that the applicant attributed to the Belgian authorities when they extended his detention, the Court accepted that the detention was closely related to the pursuit of the procedure of deportation of the applicant.  In view of the above, the Court found that the applicant’s detention was not only held by legal means, but also met the other requirements of Article 5 para 1 (f).  Therefore, it found no violation of the Article 5 para 1 of the Convention.

Regarding the applicant’s complaint under Article 5 para 4 of the Convention, the Court concluded that the applicant was deprived of his liberty from 29 January 2010 for a period of four months and he did not obtain a final decision on the legality of his detention, despite the fact that he initiated proceedings for his release twice, that the latter decisions on the merits of the requests for release were each time favourable to him and that they were not overruled by the Cassation Court for reasons relating to their legal justification [84].  According to the Court, this situation could not be reproached to the applicant, who respected the legal time limits [85].

The Court further noted that the applicant was released while the second procedure for his release was still pending, which cannot be considered as “speedily” within the meaning of Article 5 para 4 of the Convention [86].Taking into account the above, the Court considered that the applicant was unable to get a court to decide speedily on the legality of his detention and order his release if his detention was found illegal [87]. Consequently, it found a violation of Article 5 para 4 of the Convention [88]. 

Outcome:

Violation of Article 5 para 4 with regards to speedy and effective remedies to challenge the “lawfulness” of his detention