Administrative detention of a member of a terrorist organization, for reasons of public order and security. Non-violation of the ECHR
JUDGMENT
N.M. v. Belgium, 18.04.2023 (app. no. 43966/19).
SUMMARY
The case concerned the detention of an Algerian national for 31 months in a closed centre for aliens
pending his removal from Belgium on grounds of a risk to public order and national security, the
review of the lawfulness of that measure, and the applicant’s conditions of detention in the Vottem
(Liège) closed centre.
The Court noted that the domestic authorities had taken the view that the applicant’s detention was
justified for reasons relating mainly to his dangerousness and to the protection of public order and
national security. Those considerations had been reinforced by the applicant’s conviction in April
2018 for membership of a terrorist group. In view of the circumstances of the case, the Court
considered that the applicant’s detention came within the scope of Article 5 of the Convention and
that the duration of his detention had not exceeded the reasonable time required to achieve the aim
pursued by the Belgian authorities, namely the applicant’s removal to Algeria. The Court further
noted that the Belgian courts had conducted a sufficient review of the detention measure. It also
held that the applicant had not been subjected to treatment contrary to Article 3 of the Convention
during his detention in partial isolation in the Vottem closed centre.
PROVISIONS
Article 5 par. f
Article 3
PRINCIPAL FACTS
The applicant is an Algerian national who was born in 1949. In 1993 he had been sentenced by an
Algerian court to thirty months’ imprisonment for “procuring equipment for criminal ends and
raising funds for the Islamic Salvation Front”, a party of which he was a member in the 1990s. On his
release the applicant left Algeria for Europe, where he lodged several unsuccessful applications for
international protection, including in Belgium.
The Belgian authorities accordingly issued the applicant with several expulsion orders, including an
order dated 27 September 2017 which was accompanied by a detention order with a view to
removal and a ban on re-entering the country. The detention order – which mentioned, among
other things, that the applicant had not possessed a valid residence permit at the time of his arrest
and that a warrant for his arrest had been issued in 2015 for his involvement in the activities of a
terrorist group – was extended several times. The applicant was eventually released on 20 March
2020.
In the meantime the applicant had been sentenced by the Belgian criminal courts to three years’
imprisonment (in 2018) for membership of a terrorist group in Syria, and to eight months’
imprisonment (in 2021) for threatening a fellow detainee.
THE DECISION OF THE COURT…
Article 5: right to liberty and security
With regard to the aim and lawfulness of the applicant’s detention, the Court noted that an order for
his administrative detention had been made on 20 September 2017, at a time when he was not
authorised to reside in Belgium but had been imprisoned there. The Belgian authorities had
consistently sought the applicant’s removal to Algeria, through successive detention orders and
throughout his detention. They had also reassessed the risk he might face in the event of his
removal. Public order and national security concerns had weighed heavily in the decision to keep the
applicant in detention while his asylum claim was being examined. Consequently, the applicant’s
initial detention and his continued detention for the subsequent periods came within the scope of
Article 5 § 1 (f). Nor was there any reason to consider that his detention had not been in accordance
with the law.
Regarding the necessity of the applicant’s detention, the Court noted that his situation could not be
compared to that of other applicants who claimed asylum but who were particularly vulnerable, in
respect of whom the Court had stressed the need to consider alternatives to detention.
Furthermore, the applicant had been able to access the medical care and psychological support
services offered to him. Accordingly, the Belgian authorities could not be criticised for not opting for
alternatives to detention.
As to the length of detention, the Court stressed that it was mindful of the particularly lengthy
duration of the applicant’s administrative detention. However, it noted that the Belgian authorities
had acted with the requisite diligence with regard to the conduct of the expulsion proceedings.
Moreover, the examination of the applicant’s third asylum application had been particularly complex
and had entailed assessing the important matter of the risks he actually faced in Algeria on account
of the overall situation in that country and of his personal circumstances. Furthermore, throughout
the examination of the asylum application, the applicant’s case had involved equally important
considerations regarding the maintenance of public order and public safety, in view of the background information compiled by the Belgian authorities (specifically, the State security services and the risk assessment coordinating body) and the risk of proselytism identified by those bodies.
Given the real risk that the applicant posed a danger and his previous criminal convictions, it was not
the Court’s task to call into question the domestic authorities’ assessment, which did not appear
arbitrary or manifestly unreasonable. Lastly, the ordinary courts had found on each occasion that the
applicant’s detention was justified for reasons relating mainly to his dangerousness and to the
protection of public order and national security. Those considerations had been reinforced by the
applicant’s conviction in April 2018 for membership of a terrorist group. Accordingly, the duration of
the applicant’s detention in the present case had not exceeded the reasonable time required to
achieve the aim pursued by the Belgian authorities, namely the applicant’s removal to Algeria.
The Court therefore held that there had been no violation of Article 5 § 1 (f) of the Convention.
Article 5: right to a speedy review of the lawfulness of detention
The investigating judicial authorities had systematically verified, having regard to both domestic law
and the Convention, that the applicant’s detention was aimed at his expulsion, that the
administrative authorities had acted with due diligence in that regard, that the applicant’s
dangerousness had been established, and that the asylum procedure was ongoing. No judicial
decision had found the applicant’s detention to be unlawful. Accordingly, it could not be said that
the review of his detention by the Belgian judicial authorities had not been sufficient in scope for the
purposes of Article 5 § 4 of the Convention. There had therefore been no violation of that provision.
Article 3: conditions of detention
The applicant complained of being held in partial isolation (régime de chambre) during the first
months of his administrative detention in the Vottem closed centre. In that regard the Court
reiterated that solitary confinement did not in itself constitute a violation of Article 3 of the
Convention. Furthermore, a prohibition of contact with other detainees for reasons of safety,
discipline or protection did not amount per se to inhuman or degrading treatment.
In the present case the applicant had been placed for five and a half months in a special wing for
detainees who were considered “dangerous”, where he had been in partial isolation. He had
subsequently been allowed to mix with other detainees for a few hours each day. However,
following specific incidents involving anti-social and proselytising behaviour towards other residents,
he had again been placed in partial isolation. He had been allowed limited contact with other
residents as of March 2018 and was subsequently held under the ordinary regime. Thus, the
applicant’s detention had been reassessed by the management of the centre in the light of his
background and his conduct. The domestic authorities had established that the applicant was known
for his radical views and had numerous contacts with persons connected to terrorism, and that he
was classified as level 3 out of a possible 4 on the scale of seriousness of the terrorist and extremist
threat and had been actively involved with a terrorist group while in Syria. Furthermore, the fear
that the applicant might display anti-social and proselytising behaviour and recruit other residents
on an ordinary wing had indeed materialised. Lastly, there was nothing in the applicant’s file
concerning his time in partial isolation to suggest that this had adversely affected his physical or
mental health.
Consequently, the applicant had not been subjected to treatment contrary to Article 3 of the
Convention during his detention in partial isolation in the Vottem closed centre. There had therefore
been no violation of that provision.
