ECtHR - M.D. v. Belgium, Application no. 56028/10, 14 February 2014

Facts:

The applicant, from Guinea-Bissau, sought asylum in Belgium in 2009, and was detained in 2010 in a closed centre pending a Dublin transfer to Greece, through which the applicant had transited. On his third request for release, following an original detention order and two extensions, the Court of Appeal ordered his immediate release. Despite this court order, an appeal by the authorities on points of law stayed the order for release. The Court of Appeal’s judgement was quashed on procedural grounds and the case was remitted to the Indictments Chamber. Further proceedings were suspended because, on 3 September 2010, the statutory two-month maximum for detention expired and the applicant was released. Before the ECtHR, the applicant challenged the speediness and effectiveness of judicial review of his detention, under Article 5 (4) and his proposed deportation to Greece on Article 3 and 13 grounds. 

Decision & reasoning:

On Article 5 para 4, the Court noted that the applicant was detained for 4 months and 8 days. Further, it examined whether the applicant, during this period, had the possibility to examine speedily the lawfulness of his detention before a Court. It noted that the applicant lodged a first request for release on 31 May 2010 and did not receive a final decision on the lawfulness of his detention before his release on 3 September 2010. It further noted that the last judicial decision on the merits of the request for release was favourable to the applicant and that this decision was overturned by the Cassation Court not for reasons relating to his legal argumentation but for procedural reasons [42].

It found that the procedural reasoning given by the Court of Cassation in its decision on 31 August 2010 had deteriorated the situation of the applicant with regards to his right to obtain a decision on the lawfulness of his detention speedily [43]. In addition, the Court noted that the applicant was automatically released while the third procedure of his release was still pending and therefore it cannot be considered that he was released "speedily" within the meaning of Article 5 para 4 [44]. The ECtHR thus found a violation of this provision.

On Article 5 para 1 , the Court concluded that the applicant was detained as " a person against whom action is being taken with a view to deportation or extradition" and therefore his detention was examined under the second limb of Article 5 para 1 (f).

Taking cue from Firoz Muneer v. Belgium (Application no. 56005/10), the Court noted that the domestic law as interpreted by the Cassation Court was well established and sufficiently precise to be understood by the applicant, with the assistance of his lawyer. Therefore, it concluded that the requirements of Article 5 para 1 (f) were respected and rejected the applicant’s complaint as manifestly unfounded under Article 35 para 3 (a) of the Convention.

The ECtHR struck out the Article 3 and 13 complaints under Article 37 (1) (b), on the one hand because the matter has been resolved by M.S.S. v. Belgium and Greece and on the other hand because the Belgian authorities have assumed responsibility under the Dublin II Regulation to examine the applicant’s asylum claim

Outcome:

Violation of Article 5 para 4

5,000 euros for non-pecuniary damage and 3,000 euros for costs and expenses.