ECtHR - M.S. v. Belgium, No. 50012/08, 31 January 2012

Facts:

The applicant, M.S., is an Iraqi national who was born in 1976 and lives in Erbil (Iraq). On his arrival in Belgium on 15 November 2000, M. S. made an initial asylum application alleging persecution by members of Saddam Hussein’s regime.

On 21 May 2003 he was arrested on charges of criminal association, fraud and forgery, suspicion of having links with the terrorist association Al-Qaeda and of participating in supplying forged documents intended to facilitate the entry of Islamists into Europe and of smuggling irregular immigrants into Belgium. On 29 October 2004 he was sentenced to five years’ imprisonment. The judgment was upheld by the Court of Appeal, which reduced the sentence to 54 months’ imprisonment.

On 26 April 2005 the Commissioner-General’s Office for Refugees and Stateless Persons (“CGRA”) rejected his first asylum application.

Subsequently an expulsion procedure was initiated against him by the Belgian authorities, following his serving a sentence of imprisonment. After his release from prison, the applicant was detained from October 2007 to March 2009 in a closed transit centre for irregular migrants on the basis of an order to leave the territory. During his detention, he applied for refugee status which he was denied although the Council for Alien Law Litigation (CALL) noted that, if expelled to Iraq, the applicant ran the risk of being exposed to ill-treatment. Placed under a residence order between March 2009 and April 2010, the applicant was once again detained from April 2010 to October 2010 when he eventually was repatriated to Iraq. In relation to the repatriation M.S stated that he was forced to leave because the prospect of unlimited detention in Belgium was unbearable.  

Moreover, prior to his repatriation, Belgian authorities had attempted to have the applicant removed to a third country.

In Iraq M.S was arrested on leaving the aircraft and placed in detention. He was released three weeks later on bail and on condition that he did not leave his home and had no contact with foreigners.

Decision & reasoning:

Article 3

The Court reiterated that Article 3 of the Convention prohibited in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct, and even in the most difficult circumstances such as the fight against terrorism. It was not possible to weigh the risk of ill-treatment – even where such treatment was inflicted by another State – against the reasons put forward for the expulsion. In that connection, the conduct of the person concerned, however undesirable or dangerous, could not be taken into account.

In the applicant’s case the Court considered that the applicant could not be regarded as having validly waived his right to the protection guaranteed under Article 3 and that his return must be considered to be a forced return.

The Court noted that it had not been disputed that there were serious and established grounds for believing that there was a real risk of treatment contrary to Article 3 in Iraq.

Despite that, the Belgian authorities had taken no steps to obtain diplomatic assurances from the Iraqi authorities that M.S. would not be subjected to such treatment upon his return. In the Court’s view, M.S.’s return should have been accompanied by a series of safeguards with a view to ensuring his safety in Iraq, the most important being obtaining diplomatic assurances.

By failing to take such action, the Court held, that the Belgian authorities had not done all that could reasonably have been expected of them with regard to the Convention.

Articles 5 § 1 and 5 § 4 in respect of the first period of detention

The Court considered that M.S. had been detained in accordance with a procedure prescribed by law. However, from 29 May 2008, when the CGRA expressed its opinion on

the risks faced by M.S. were he to return to Iraq, it appeared that his continued detention had been based merely on reasons of security, since the authorities had been unable to remove him without breaching their obligations under the Convention. If the Belgian authorities had been able to find a country in which M.S. would not risk being subjected to treatment contrary to Article 3, they would have raised the prospect of expelling M.S. and thus justified the existence of a deportation procedure that was already under way. However, the Government failed to provide any information evidencing that any contact had been made at that stage with other countries.

The Court concluded that there had been a violation of Article 5 § 1 in respect of the first period of detention from 29 May 2008 to 4 March 2009. The Court considered that the applicant had not benefited from the right to a speedy decision on the lawfulness of his detention and concluded that there had been a violation of Article 5 § 4.

Articles 5 § 1 and 5 § 4 in respect of the second period of detention

The Court considered that the only real ground for detention during that period arose out of the report prepared by the police and the letter from the risk assessment body, rather than a realistic prospect of being able to remove M.S. within a reasonable time. It noted that since his release from prison in 2007, no court had re-assessed the risk posed by M.S. to public order and national security. Moreover, the documents in question had been issued by administrative bodies which had not given any reasons explaining to the applicant what he was accused of. In those circumstances, the Court considered that M.S. had not benefited from the minimum guarantees against arbitrariness and that on 2 April 2010 he had been detained in breach of Article 5 § 1.

The situation was different between 17 May 2010 and 16 August 2010 when M.S. indicated his refusal to be sent to Burundi, because over the course of those three months, action was indeed being taken with a view to deportation within the meaning of Article 5 § 1 (f).

Subsequently, and until 27 October 2010, M.S. had been detained on the basis of extension measures justified by the steps being taken with a view to finding a third country and because of the danger that M.S. represented to public order and national security. Having regard to the failure of the steps taken with a view to finding a third country, the absence of any further steps in that connection and a new opinion from the CGRA of 24 August 2010 confirming the risks faced in the event of removal to Iraq, the Court found that there was no connection between the continued detention of M.S. and the possibility of removing him from Belgian territory.

The Court considered that the applicant’s placement in detention on 2 April 2010 and the measures taken to extend his detention from 24 August 2010 had not been “lawful” and that there had been a violation of Article 5 § 1.

Outcome:

A violation of Article 3 of the European Convention on Human Rights in respect of the return of the applicant to Iraq;

A violation of Article 5 § 1 of the Convention in respect of the first period of detention in a closed transit centre from 29 May 2008 to 4 March 2009, placement of the applicant in a closed transit centre on 2 April 2010 and measures to extend his detention after 24 August 2010;

A violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) of the Convention in respect of the first period of detention.

Subsequent proceedings:

The judgment has been executed.

Observations/comments:

Resolution CM/ResDH(2015)84, Execution of the judgment of the European Court of Human Rights M.S. against Belgium

The supervision of the execution was closed in June 2015. The Belgian Government provided the Committee of Ministers with the action report indicating the measures adopted in order to give effect to the judgment including the information regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2015)446).

Other sources:

Amnesty International, « New Order, Same abuses. Unlawful detentions and torture in Iraq», September 2010