Deportation before the examination of the legal remedies and despite the judicial suspension of the deportation. Conviction for ineffective appeal and for the procedural part of Article 3 of the ECHR

JUDGMENT

M.A. v. Belgium  27.10.2020 (app. no. 19656/18)

see here

SUMMARY

Deportation of the applicant to Sudan by the Belgian authorities despite the existence of a court order ordering the temporary suspension of the measure and despite the pending request of the court to release him.

The Court found that the applicant’s sudden expulsion, despite the court’s decision to stay the measure and despite the pending request for the applicant’s release, rendered the appeal ineffective and found that there had been a violation of Article 13 (right to an effective remedy). in conjunction with Article 3 of the ECHR.

According to the ECtHR, the applicant’s deportation was mainly due to procedural defects due to the Belgian authorities prior to his deportation, which deprived him of the right to adequately support his application for asylum in Belgium, while the Belgian authorities did not would face in Sudan.

The ECtHR also considered that the circumstances under which the applicant’s preliminary investigation was conducted were a matter of concern. The police officer who interviewed him did not speak fluent Arabic and the applicant had not been informed in advance that such an interview would take place.

The Court also found a breach of the procedural part of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR.

PROVISIONS

Article 3

Article 13

PRINCIPAL FACTS

The applicant, M. A., is a Sudanese national who was born in 1993.

M A. entered Belgium unlawfully on an unknown date, having passed through Italy and with the
intention of going on to the United Kingdom. He slept in Parc Maximilien in Brussels with about 100
other Sudanese migrants. While trying to reach the UK, he was stopped by the Belgian police on
18 August 2017. He was issued with an order to leave the country and to be held pending removal.
On the same day, the Belgian authorities transferred him to a migrant detention centre near
Brussels Airport.

Exercising his right to be heard before his removal, M.A. told an official at the centre that he had fled
because of the situation in his country, where he was a wanted person. On 6 September 2017 he
submitted an asylum application containing his statements. Shortly afterwards, social media and the
Sudanese press relayed an announcement by the Belgian authorities that they were working with
the Sudanese authorities to identify and repatriate Sudanese nationals who had unlawfully entered
Belgium. M.A. withdrew his application a few days later, referring to these developments and to the
fact that he did not have a lawyer. On 27 September 2017, in the detention centre, M.A. was present
at a meeting with members of the Sudanese embassy and the Sudanese identification mission,
following which the embassy issued him with a travel permit to return to his country.

After consulting a lawyer on 30 September 2017, M.A. filed a request for release with the Louvain
Court of First Instance. On 12 October 2017, before the request could be examined, he was warned
that he would have to board a flight to Khartoum (Sudan). Ruling on an application from M.A., the President of the Dutch-speaking Court of First Instance in Brussels held that the Belgian State could not deport the applicant before the courts had ruled on the custodial measure, subject to a coercive
fine of 10,000 euros (EUR). The deportation, arranged for the following day, was cancelled, but M.A.
was nevertheless taken to the airport. He alleged that he had been met there by a man in uniform
who explained to him in Arabic that if he refused to board the plane, further attempts to remove
him would be organised and that he had been threatened with sedatives if he refused. The applicant
signed a statement authorising his departure and boarded the flight.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, the applicant complained that there had been no prior examination prior to his
deportation of the risks he was facing in Sudan. Under Article 13 (right to an effective remedy), he
also alleged that he had not had any effective remedy by which to submit his complaints under
Article 3 or a suspensive remedy in respect of his removal. He also argued that the Belgian
authorities had breached his rights under Article 6 § 1 (right to a fair hearing / right of access to a
court) by infringing the court order. Lastly, he complained that his detention had been incompatible
with Article 5 (right to liberty and security).

THE DECISION OF THE COURT…

Article 3 (prohibition of inhuman or degrading treatment)

As to the information available on the situation in Sudan, it was well known that the general human
rights situation there had been problematic at the time. In those circumstances, it could not readily
be argued, as the Government had done, that the existence of a serious and established risk for the
applicant was to be ruled out. The Court emphasised that a post-removal finding that the applicant
did not run any risk in his country of origin, as made in the present case, could not serve to release
the authorities retrospectively of their procedural obligations during the removal process.

As to whether the applicant had had a real and effective opportunity to make submissions about the
personal risks that he faced if returned to Sudan, the Court noted that he had repeatedly expressed
his fears. It reiterated that, while the burden of proof with regard to substantiating the individual
risks lay on the person submitting an asylum application, the rules concerning the burden of proof
should not render ineffective the rights protected under Article 3 of the Convention. It was also
important to take into account the practical difficulties that an alien might encounter in pursuing an
asylum application.

The Court attached weight to the applicant’s allegation that he had not consulted a lawyer during
the first few weeks of his detention, a fact which was not contradicted by the evidence. It also noted that during the interview organised on the applicant’s arrival in the detention centre, no official interpreter had been present, even though he only understood Arabic. The Court found that these
circumstances undoubtedly represented obstacles which could explain the applicant’s inconsistent
procedural attitude and the brevity of the information he had provided to the authorities and that
he had not been provided with a realistic prospect of access to international protection. It appeared
from the form which had been filled in on the basis of his statements that only general questions
had been asked about the risks he might face, without any reference or question concerning his
region of origin, ethnic origin or reasons for having left Sudan. The Court was therefore of the
opinion that the Government had not carried out a sufficient prior assessment of the risks faced by
the applicant under Article 3.

Furthermore, the Court was of the view that the conditions in which the applicant had been
identified raised concerns. The official who had interviewed him was not fluent in Arabic, the
language in which the interviews had been conducted, and the applicant had not been informed
beforehand that such an interview would take place.

In the light of those procedural defects, the Court found that there had been a violation of Article 3.
Article 13 (right to an effective remedy) taken together with Article 3

As to whether the applicant had been afforded effective access to the remedies available against
arbitrary refoulement, the Court found that having regard to the reasoning which led it to find a
violation of Article 3 in the present case, there was no justification for a separate examination of the
same facts and complaints under Article 13.

Turning to the applicant’s allegation that he had not been afforded a suspensive remedy in respect
of his deportation, the Court found that in the present case it had been a combination of the remedy
he had exercised – the application for release combined with the urgent application to the President
of the Court of First Instance – which had provided the applicant with protection against arbitrary
removal, at least temporarily. As the President’s decision prohibiting his return had been
enforceable and thus binding on the authorities, the applicant had been entitled to expect
compliance with the order.

Having regard to the fact that the applicant could not be considered to have voluntarily left Belgium
or even to have voluntarily signed a statement accepting his removal, and in view of the speed with
which the authorities had acted the very next day, in spite of the order prohibiting the deportation,
it had to be concluded that, by failing to suspend the measure in compliance with a court decision,
the Belgian authorities had rendered ineffective the applicant’s successful appeal.

There had thus been a violation of Article 13 taken together with Article 3 of the Convention.

Other Articles

The Court found that it did not need to examine the applicant’s complaints under Article 6 § 1 of the
Convention (right to a fair hearing / right of access to a court) and declared the complaints under
Article 5 (right to liberty and security) inadmissible.

Just satisfaction (Article 41)

As the applicant had not made any claim by way of just satisfaction, the Court found that there was
no call to make an award under this head