Case summaries
The case concerns seven Venezuelan nationals who arrived in Curaçao in April 2019 and were placed in immigration detention following refusal of entry and removal orders. The Court found a violation of Article 3 ECHR in relation to the use of force during their detention, the absence of an effective and independent investigation and the lack of justification for the use of rubber bullets against applicants in custody. It further found a violation of Article 5 § 4 ECHR, due to the lack of access to a speedy judicial review of the lawfulness of their detention, particularly due to the lack of accessible remedies, language barriers, and absence of effective legal assistance.
To determine whether there is a violation of Articles 2 and 3 ECHR in the context of expulsion, the Court analyses if the Applicant has presented substantial grounds on (i) whether he faces a real risk of ill-treatment or death in the country of destination, and (ii)whether the national authorities carried out an adequate assessment of the evidence. States have an obligation to analyse the risk ex propio motu when they are aware of facts that could expose an individual to the risk of treatment prohibited by Articles 2 and 3 ECHR. If the domestic jurisdictions didn’t carry out a proper assessment, the Court analyses the risk on its own on the basis of the parties submissions, international reports and its own findings.
States have an obligation, under Article 5 § 1 ECHR, to act with due diligence and impose a reasonable period of detention pending expulsion. Article 5 § 4 ECHR is breached if detained individuals can’t obtain a revision of their detention before a domestic court.
The Court decides that the maximum period of detention for the purpose of removal of a person on the grounds of public policy or public security under Belgian law, according to which Union citizens and their family members are treated in the same way as third-country nationals subject to a return procedure, exceeds the principle of proportionality and thus does not comply with EU law.
The Return Directive does not prevent a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.
The situation in which an appeal by a foreigner against a detention decision is declared ‘without object’, solely on the ground that a new detention order has been issued, does not offer the guarantees of effectiveness and promptness required by article 5 §4 of the Convention.
EU law does not preclude national legislation that allows an illegally staying third-country national to be detained in prison accommodation for removal, on the ground that he poses a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned. The detainee should be kept separated from ordinary prisoners.
The Court concluded on the immediate release of an Egyptian national from detention. The judgment referred to the detention conditions for vulnerable persons that suffer from serious health conditions during the Covid-19 pandemic.
Due to the COVID-19 health crisis, and especially the cancellation of flights to the applicant’s country of origin, the continuation of immigration detention is no longer required because an effective return cannot be considered anymore as a reasonable perspective.
In the midst of the health crisis, the judge of liberty and detention of the Lille Judicial Tribunal considered that the health risk for the Applicant as well as for a third party, generated by the extension of the administrative detention was disproportionate to the perspectives of return. Especially since most countries had closed their borders.
As a result, the judge held that there was no reason to extend the duration of the Applicant’s detention.
Due to the COVID-19 health crisis, and especially the cancellation of flights to the applicant’s country of origin, the continuation of immigration detention is no longer required because an effective return cannot be considered anymore as a reasonable prospect.