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. 

The Court ruled that Malta violated Article 3, 5 and 13 of the Convention given the fact that the applicants, who were minors, endured inhumane detention conditions, lacked an effective remedy to challenge their detention, and faced unlawful deprivation of their liberty. 

Detention beyond the period for which an individual would otherwise need to be detained pursuant to Schedule 2 § 16(1) for the purpose of an age assessment that will or doesn’t comply with applicable legal standards would be unlawful. Also, both common law and section 55 of the BCIA 2009 require a fair and careful process involving appropriate safeguards, which the Guidance doesn’t provide and is also inconsistent with the Secretary of State for the Home Department (SSHD) pre-existing polices.

In a case concerning a foreign national who had a valid refugee status in Germany, the Dutch Secretary of State ordered them to leave the country and placed her in detention in view of returning her to Germany. The Council of State found that the first instance Court wrongfully declared that Article 59(2) of the Aliens Act of 2000 provided no basis for detaining the foreign national.

The Court found that there was a violation of Article 2 of the ECHR as State authorities used unreliable evidence to conclude their investigation into the death of an applicant. Moreover, the Court concluded that the State authorities violated Article 5 ECHR by failing to conduct an effective investigation into whether there was an alternative to detaining the applicants. As such, the detention of the children in a detention centre was further found to have violated Article 3, especially given the severity of the circumstances of the case and the period of their detention. The Court also concluded that the applicants had been subject to “expulsion” within the meaning of Article 4 of Protocol No. 4, since they were forcibly returned by the Croatian police outside official border crossings and without prior notification to the authorities of the country to which they were being returned.

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 conditions of detention amounted to a violation of Article 3, in so far as the applicant remained in isolation, in a container with inadequate natural light and ventilation, for a significant amount of time and without any consideration of alternatives. The applicant’s unnecessary placement in a part of the detention facility that was reserved for Covid-19 quarantine also exposed him to health risk.

The applicant’s detention was not lawful under Article 5 (1) ECHR, as it lasted for fourteen months, the authorities were aware that the deportation was not feasible and failed to pursue the matter with diligence. Article 34 was also violated due to irregularities in the manner that legal aid was provided to the applicant and the lack of confidentiality and support during his communication with the Court while he was in detention.

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. 

The governmental authority is requesting an authorization to detain an immigrant after an alleged infraction of article 53 of the Organic Law 4/2000 in order to guarantee the enforcement of a possible return procedure. Following the procedures detailed in article 62 of said law, the Court assessed the particular circumstances of the case, including the risk of nonappearance and the possible existence of previous administrative sanctions of the subject, concluding that the lack of roots in the Spanish territory and the fact that he already filled in an asylum application show that the detention is not necessary in this case.

The Return Directive does not preclude Member States from introducing legislation that imposes a custodial sentence on individuals for whom the return procedure has been exahusted but still remain in the territory, where the criminal act consists in an unlawful stay with notice of an entry ban, issued in particular on account of that third-country national’s criminal record or the threat he represents to public policy or national security.

However, such a provision in national legislation is permitted if the criminal act is not defined as a breach of such an entry ban and the legislation itself is sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness.