The stereotypical and short justification of decisions to detain asylum seekers is compatible with the ECHR.
JUDGMENT
Thimothawes v. Belgium 04-04-2071 (no. 39061/11)[1]
SUMMARY
Detention and deportation. Asylum. The Belgian authorities decided to deport and detain of an Egyptian national in a designated detention center, who had submitted a series of asylum applications to the Belgian authorities, but were rejected. The Court considered that there had been no violation of Article 5 § 1 on the grounds that the Belgian authorities carried out a legality check and took into account the case law of the Court despite the brief and stereotyped wording of the detention orders. General decisions on the temporary detention of asylum seekers without any individual assessment of any special needs could give rise to a violation of Article 5 § 1.
PROVISION
Article 5 par. 1
PRINCIPAL FACTS
The applicant, Waleed Nasser Thimothawes, is an Egyptian national who was born in 1984 and lives in Bruges (Belgium).
On 1 February 2011 Mr Thimothawes arrived from Turkey at the Belgian border. He immediately lodged an asylum application, which was rejected on 17 February 2011 by the Commissioner General for Refugees and Stateless Persons.
Meanwhile Mr Thimothawes was served with a refusal-of-entry decision, accompanied by expulsion (refoulement) and detention in a designated place close to the border. On 1 March 2011 he lodged an application for release from detention, which was declared ill-founded by both the Brussels Regional Court and the Indictment Division of the Brussels Court of Appeal.
On 26 March 2011, after having refused to be repatriated to Turkey, a second decision was taken to detain him in a designated place. Mr Thimothawes reapplied for release, which application was once again dismissed by the Indictment Division of the Brussels Court of Appeal. On 5 May 2011, before he could even lodge an appeal with the Court of Cassation, the Aliens’ Office issued a third refusalof-entry decision, accompanied by expulsion and detention in a designated holding centre. One last application for release was dismissed at first and second instances.
Mr Thimothawes was released on 4 July 2011 on expiry of the maximum legal period of detention
Concurrently, on 5 May 2011, Mr Thimothawes had lodged a second application for asylum based on new documents relating to his mental health, which had been rejected by decision of the
Commissioner General for Refugees and Stateless Persons, that decision having been upheld by the Aliens’ Litigation Council.
THE DECISION OF THE COURT
Article 5 § 1
The Court reiterated that pursuant to Article 5 of the Convention detention orders had to be prescribed by law, which refers to either a domestic provision or a legal standard laid down in
international law.
The Court observed that the Aliens Act had been applied to Mr Thimothawes, which legislation he considered contrary to two European Union directives.
The Court reiterated that it was incumbent on the national authorities to interpret domestic law in conformity with European Union law. Save in the case of an arbitrary or manifestly unreasonable interpretation, the Court confined itself to assessing the compatibility of the effects of that interpretation with the Convention. The Court pointed out that general or automatic decisions to detain asylum-seekers without any individual appraisal of any special needs could raise an issue under Article 5 § 1. In the instant case, however, the Court held that the succinct, stereotypical wording of the detention orders with which Mr Thimothawes had been served had not prevented the Belgian courts from conducting scrutiny which, although confined to supervision of lawfulness, took account of the case-law of the Court. Furthermore, the Court considered that the applicant’s mental health was not a factor clearly conducive to the conclusion that his detention had not been justified. It observed that Mr Thimothawes had been given proper care in both the holding centres in which he had been detained and that the reports drawn up by the psychological services had not mentioned any obstacles to his detention. The Court concluded that the detention order had not been unsuited to his mental state and that the authorities had been under no obligation to seek less coercive measures.
Finally, as regards the allegation of an unreasonable length of detention, the Court held that in the circumstances the repatriation procedure to Turkey, the expulsion procedure to Egypt and the
[1] See also similar decision Muzamba Oyaw v. Belgium of 04-04-2017 (no. 23707/15)
