Detention of a foreign asylum seeker based on an annulled court decision. Violation of the right to liberty and security and lack of redress

JUDGMENT

Muhammad Saqawat v. Belgium 30.06.2020 (app. no.  54962/18)

see here 

SUMMARY

Asylum applications from a foreigner. Detention  for deportation. Right to liberty and security and the possibility of redress.

The applicant, a Bangladeshi national, was detained in a Belgian detention center while his repeated applications for asylum were being processed due to his possible repatriation to his country of origin.

Strasbourg reiterated that the lawfulness of any detention must be based on domestic law and international and European law. With regard to the detention of an alien, he must be the subject of an individual examination of his situation.

In the present case, the ECtHR found that the applicant was detained from 20 to 27 February 2018, however the decision for this detention was annulled on 27 February 2018. He was re-detained from 28 February to 14 May 2018 with a decision that was valid until 6 May.

Strasbourg found a violation of Article 5§1 of the Convention for the period from 20-27 February and from 6-14 May 2018 and a violation of Article 5§4 as it did not have an effective remedy to terminate the illegal detention.

The ECtHR awarded the applicant EUR 7,500 for non-pecuniary damage.

PROVISIONS

Article 5§1,

Article 5§4

PRINCIPAL FACTS

The applicant, Hossain Muhammad Saqawat, is a Bangladeshi national who was born in 1986 and
lives in Liège (Belgium).

The case concerned the detention for several months of an asylum-seeker pending his removal from
Belgian territory. The applicant contested the lawfulness of his detention.

Mr Saqawat arrived at Zaventem airport in December 2017 and lodged an initial asylum request. On
the same day the Aliens Office decided to refuse him entry and to retain him in a specified location.
Mr Saqawat was then placed in detention in a transit centre near the airport. A few weeks later his
asylum request was rejected. Subsequently, he submitted further asylum requests, which were also
rejected. Meanwhile Mr Saqawat had been the subject of several successive detention orders, which
he unsuccessfully contested. He was released in April 2018 following a judgment delivered by the
Indictments Division.

Relying on Article 5 (right to liberty and security) of the European Convention on Human Rights, Mr
Saqawat alleged that his detention had been incompatible with that Article and complained that he
had had no access to an effective remedy to contest that detention.

THE DECISION OF THE COURT…

According to the case law of the Court on Article 5 § 1 of the Convention, it is clear that any deprivation of liberty must be ‘lawful’. With regard to the “legality” of a detention, the Convention essentially refers to national law, but also, where appropriate, to other legal texts applicable to the persons concerned, including those found in international or European law.

a) Detention from 20 to 27 February 2018

The decision of February 20, 2018 was based on Article 75, paragraph 1, 2nd of the Law on Foreigners. This provision provided for the detention of an alien during the examination of his asylum application, in view of the possible repatriation. Consequently, the detention of an alien in a particular place must, in particular, be the subject of an individual examination of his situation. After it was found that the decision of 20 February 2018 was not based on an individual assessment of the applicant’s situation, this decision was declared illegal and his release was ordered. This decision has not been overturned. It follows from the above that the unjust judgment of the decision of 20 February 2018 was established, directly or indirectly, by the national courts. The Court does not overlook the fact that, under national law, the decision of 20 February 2018 could still be a valid detention order if it had not been revoked or reformed and was officially valid until 27 February 2018, the date on which which was replaced by the decision of 27 February 2018. However, is of the opinion that the official validity of the detention decision can not outweigh the inherent legality of the title. Since the decision of 20 February 2018 was contrary to national law recognized in conjunction with EU law, the Court concluded that the applicant’s detention was unlawful at the time of the decision, ie from 20 until 27 February 2018.

b) Detention from February 27 to May 14, 2018

The decision of February 27, 2018 was based on article 75, paragraph 1, 1st of the law on aliens. This provision provided for the detention of an alien to ensure effective deportation following the rejection of his application for international protection and his repeated refusal to leave the country.

On the contrary, from the decision of the Court of Cassation of April 25, 2018, it seems that the decision of February 27, 2018 was not annulled. The Court sees nothing arbitrary or manifestly absurd in its interpretation of domestic law in conjunction with EU law.

The decision of 27 February 2018 could therefore, in the opinion of the Court, constitute a legal document for the applicant’s detention from that date.

However, on 14 May 2018, the indictment stated on the one hand that the decision of 27 February 2018 for his detention was valid until 6 May 2018 at the latest and, on the other hand, that it was not ratified in parallel with the decision of 27 April 2018. Indeed, according to with the indictment, this last decision referred to the decision of 20 February, which however disappeared from the legal order precisely because of the approval of the decision of 27 February 2018.

The ECtHR found a violation of Article 5 § 1 – concerning detention periods from 20 to 27 February 2018 and from 6 to 14 May 201 and a violation of Article 5 § 4 because the applicant did not have an effective remedy to terminate the his illegal detention.

Just satisfaction: 7,500 euros (EUR) (non-pecuniary damage) and EUR 1,600 (costs and expenses)


ECHRCaseLaw

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