ECtHR - Muhammad Saqawat v. Belgium, Application no. 54962/18, 2020

Facts:

In December 2017, the applicant arrived at Brussels airport and applied for international protection. On the same day, the immigration office refused his entry onto the territory and decided that the applicant should be detained in a transit centre close to the airport. Later on, the administration refused his application for international protection.

In January 2018, the applicant lodged a subsequent application for international protection which was not taken into consideration by the authorities and was followed by a new detention order. Against this, the applicant filed a motion for release. In the meantime, the applicant refused to board a return flight, which was followed by a third detention order, against which the applicant again filed a motion for release. On 31 January, the Council Chamber of the Court of First Instance ordered the applicant’s release on the ground that the second, and by extension the third detention order, were motivated in a stereotyped manner without any assessment of the applicant’s individual situation. This was overturned by the Court of Appeal, on the ground that the two decisions constituted autonomous titles. The Court of Appeal also ruled that the second detention challenge had become ‘without object’. The applicant appealed against this judgement to the Court of Cassation, invoking article 5 §4 of the European Convention of Human Rights, but this was dismissed.

In February 2018, the authorities did not consider the applicant’s third application for international protection and issued a fourth detention decision. Later on, a fifth detention decision was issued because the applicant refused to board a return flight. The Council Chamber ordered the applicant’s release on the grounds that the two detention decisions were again motivated in a stereotyped way. This decision was confirmed by the Court of Appeal. On the contrary, the Court of Cassation quashed the release order, stressing that the fourth and fifth detention decisions have different grounds and that the illegality of the fourth decision did not affect the legality of the fifth one.

The applicant claimed before the ECtHR that he was unlawfully detained in breach of art. 5 §1 of the European Convention of Human Rights. Moreover, he claims that he was deprived of the effectiveness of remedy, in breach of art. 5 §4 of the Convention.

Decision & reasoning:

Art. 5 §1 European Convention of Human Rights

The European Court of Human Rights decided that the illegality of the fourth detention decision was found by the domestic courts and that the applicant’s detention from 20 to 27 February 2018 was thus unlawful.

Regarding the fifth detention decision, the Court decided that it constitutes a legal title for detention from 27 February until 6 May 2018.

A violation of article 5 §1 of the ECHR was found in respect of the periods of detention from 20 to 27 February and from 6 to 14 May 2018.

Art. 5 §4 European Convention of Human Rights

The Court had to decide whether the case law of the Court of Cassation, which declares an appeal against an initial detention decision ‘without object’ when a new detention decision is taken in the meantime, violates article 5 §4 of the ECHR.

The Court considered that, despite several domestic findings that the second and fourth detention orders were unlawful, the applicant was not released, nor able to obtain a final ruling from a court on the lawfulness of those orders. According to the ECtHR, this leads to a situation in which a detained foreigner is not allowed to obtain his release despite several findings of illegality, solely on the ground that a new detention order has been issued. This prevents him from arguing before domestic courts that the new detention order is affected by the original one.

The Court concluded that the applicant was not able to obtain a final and prompt decision by a court on the lawfulness of his detention and that he was deprived of access to effective remedy. The Court finds a violation of article 5 §4 ECHR.

Outcome:

Violation of article 5 §§ 1 and 4 of the European Convention of Human Rights