K.G. v. Belgium (No. 52548/15), 6 November 2018

Facts:

The applicant, a Sri-Lankan national, claimed asylum in Belgium in 2009 as a member of the Tamil minority.  He was detained in 2010 on account of indecent assault and was convicted in 2011. An expulsion order was further issued following his asylum claim’s rejection. Between 2011 and 2014, the applicant claimed asylum 5 times unsuccessfully and was notified with various expulsion orders. After traveling to France and Switzerland in order to claim asylum, he was diagnosed with schizophrenia and returned to Belgium, the latter being the Member State responsible to examine his application.

In 2014, the applicant was the subject of a ban from entering Belgian territory and was detained owing to his risk of absconding. The applicant lodged unsuccessful appeals on the grounds of being exposed to the risk of being subjected to treatments prohibited under Article 3 of the Convention.

He lodged a 7th asylum claim for which a second custodial measure was taken, while the procedure was pending, as he represented a danger for public order. While in custody, he received psychiatric care.

In 2015, an order for preventive detention was issued. The applicant unsuccessfully tried to challenge his detention on Article 5 ECHR grounds. His seventh asylum claim was rejected and a new expulsion order issued, accompanied with a custodial measure. The applicant unsuccessfully filed a request to suspend this order on emergency grounds and a request for an interim measure before the Court in 2016. He unsuccessfully lodged an appeal to annul the order to leave territory and a request for regularisation. After an 8th rejected asylum claim, the applicant was returned to Sri Lanka.  

Decision & reasoning:

Regarding the alleged violation of Article 5 in relation to the applicant’s detention, the Court notes that several custodial measures were taken over successive periods of time, some of which were unchallenged before domestic courts. It concludes that the claim is inadmissible for non-exhaustion of available domestic remedies.

Regarding the applicant’s detention and alleged violation of Article 5 following the issuance of the preventive detention order, the Court observes that the applicant exhausted domestic remedies. In substance, the applicant argues that a duration limit was not provided and less constraining options were not offered. He further argues that such a detention measure does not fall in the scope Article 5 (1) f as he was already on Belgian territory with an asylum claim pending. He adds that his harmfulness was no longer established and that his stay was excessive and unsuitable.

The Court first refers to the Belgian legislation to recall that a preventive detention order can be issued under exceptional circumstances, despite a pending asylum procedure.

Regarding the absence of a duration limit, the Court reminds the jurisprudence according to which the existence and duration of such a limit are taken into consideration to assess whether a domestic legislation is sufficiently accessible, precise and foreseeable, yet its absence or existence cannot in itself be sufficient to guarantee conformity to Article 5.

Regarding the absence of alternative less constraining options to detention, the Court recalls that the authorities carried out an assessment balancing the common interest with the applicant’s mental health, which it will not re-assess as it observes it is based on a certain legal basis and is neither arbitrary nor unreasonable.

On whether the applicant’s detention pursued a clear objective provided under Article 5 (1) f, the Court notes that to assess whether a detention measure is lawful, the domestic legislation solely needs to have a certain legal basis regardless of which component of Article 5 it is specifically based on. Despite acknowledging that the applicant was already on Belgian territory, the Court concludes the authorities legitimately pursued, via the means of custodial measures, the objective of expelling him, falling either in the scope of the first or second part of Article 5 (1) f. The Court also stated that the immigration authorities had updated information relating to the situation in Sri Lanka and took into consideration new elements in the course of the procedure before issuing their decision in a reasonable time. Furthermore, the Court observes that owing to the applicant’s mental health posing a risk to security, a thorough assessment of each element was required, which was conducted with guarantees against arbitrariness in the procedure reviewing the legality of detention.

Hence, the Court concludes that the applicant’s detention did not amount to a violation of Article 5§1 as he did not provide evidence that such a detention was unjustified or unsuitable to his mental health, as he benefited from psychological support. Moreover, he did not establish a reason why authorities should have taken alternative measures. Considering the applicant’s situation, the Court further concludes that the duration of the latter’s detention was reasonable. 

Outcome:

No violation of Article 5§1 of the Convention

Subsequent proceedings:

Pending request for referral to the Grand Chamber 

Other sources:

• Report from an independent psychiatrist, 7 July 2015
• Report from a doctor and psychologist from Doctors of the World, 7 September 2015