House arrest with the use of handcuffs, without the consent of the arrested. Violation of the right to respect for the home
JUDGMENT
Sabani v. Belgium 08.03.2022 (app. no. 53069/15)
SUMMARY
The case concerned the applicant’s arrest inside her home by the police, after she had been served
with an order to leave the country, accompanied by a decision to keep her in a designated place. The
Belgian police had gone to the applicant’s place of residence at the request of the Aliens Office in
order to verify her compliance with the expulsion order and, if necessary, to arrest her. Noting that
the applicant had not complied with the order to leave the country, the police arrested her,
handcuffing her in order to arrest her and place her in detention with a view to her expulsion.
The domestic courts ruled that the arrest had been lawful under Article 8 of the Convention,
considering that there was nothing in the case file to suggest that the door to the flat had been
forced open. The use of handcuffs was also deemed justified by the risk of the applicant absconding,
given the large number of administrative and legal steps which she had taken in order to remain in
Belgium and her non-compliance with the expulsion orders issued against her.
The Court noted, firstly, that in the light of the arguments put forward by the parties, the applicant’s
arrest had amounted to an interference, adding that the Government had not mentioned any legal
basis to justify that arrest. It concluded that the interference had not been in accordance with the
law within the meaning of Article 8 of the Convention. Secondly, the Court noted that the
Government had not established the necessity of handcuffing the applicant in the particular
circumstances of the case.
PROVISIONS
Article 8
PRINCIPAL FACTS
The applicant, Aferdita Sabani, is a Serbian national who was born in 1958 and lives in Preshevo
(Serbia).
Having arrived in Belgium in 2009 with her daughter to join her husband, Ms Sabani submitted
several requests for asylum and for the regularisation of her residence status, all of which were
rejected and followed by expulsion orders.
On 19 March 2015, Ms Sabani was served with another order to leave the country, accompanied by
a decision to keep her in a designated place. On the same day the Aliens Office instructed the
municipal police in her area to check whether she had complied with a previous expulsion order and,
if not, to arrest her.
The police went to the address indicated by the Aliens Office. Ms Sabani opened the door to her
apartment. The police, noting that she had not complied with the order to leave the country,
arrested her, handcuffing her to take her to the Bruges closed centre.
Ms Sabani relied on the violation of Article 8 of the Convention before the domestic courts on the
grounds that the police had intruded into her home and had handcuffed her.
The court, deliberating in private, decided by order of 15 April 2015 to maintain the applicant’s
detention.
On 29 April 2015 the ordered was upheld by the Indictments Division of the Brussels Court of
Appeal. That court ruled that the police had conducted not a house search but a routine check which
was covered by domestic law, and that there was nothing in the case file to suggest that the door to
the flat had been forced open. It considered that the use of handcuffs had been justified by the risk
of the applicant absconding, given the large number of administrative and legal steps which she had
taken in order to remain in Belgium and her non-compliance with the expulsion orders issued
against her.
Ms Sabani lodged an appeal on points of law against the decision of 29 April 2015. The appeal was
dismissed by the Court of Cassation by judgment of 10 June 2015, on the grounds that it had lost its
purpose on account of a fresh detention order constituting an separate measure different from that
targeted by the appeal. Indeed, the applicant had meanwhile, on 22 May 2015, submitted a further
request for asylum, which had given rise to a fresh order, dated 27 May 2015, to leave the country,
accompanied by an extension of the detention measure. Ms Sabani’s application for release
concerning the detention order of 27 May 2015 was declared ill-founded by order of the court
deliberating in private, and upheld by judgment of the Indictments Division.
Ms Sabani was repatriated the same day.
Relying on Article 8 (right to respect for her home), the applicant complained that her administrative
arrest had amounted to an unjustified interference with her right to respect for her home, and that
the use of handcuffs had not been necessary.
THE DECISION OF THE COURT…
Article 8
The Court observed that it was undisputed by the parties that the police had gone to the applicant’s
home in order to check on her. However, the applicant disagreed on the question whether there had been an interference with her home. In that connection, the Court noted that the applicant had consistently and coherently pointed out that the police officers had entered into her home.
On the other hand, the Court was not convinced by the Government’s version to the effect that the
inspection had taken place outside rather than inside the applicant’s home. The police reports did
not state that the inspection and the applicant’s arrest had been effected outside her flat.
Furthermore, it was rather inconsistent to affirm, on the one hand, that the applicant had
spontaneously come out of her apartment for the police check – as was not mentioned in the police
reports – and on the other hand, that she had been uncooperative with the police officers – as
explicitly stated in the administrative report of 19 March 2015. Nor had it been established that the
applicant had waived her right to the protection of her home. It transpired from the report of
19 March 2015 that the police had gone directly to the applicant’s home, and had therefore not
announced their arrival or the reason for their visit beforehand. Such judicial review as had been
conducted by the domestic courts in the present case had shed no light on the circumstances
surrounding the consent reportedly given by the applicant.
In the light of the evidence before it, the Court considered that the applicant had presented prima
facie evidence of the police officers’ intrusion into her home, which the Government failed to refute
convincingly. The Court ruled that the interference with the applicant’s right to respect for her home
had been properly established.
As regards the legitimacy of the interference, the Court noted that the Government had not
provided any legal basis capable of justifying it. It noted that in Belgian law, the inviolability of the
home was specifically enshrined in Article 15 of the Constitution, which explicitly provided that no
house searches could take place except in the cases provided for by the law.
In its judgment of 29 April 2015, the Indictments Division had merely noted that the applicant’s
arrest at her home had been in conformity with Article 8 of the Convention since it had been in line
with the police duties as set out in section 21 of the Law on the police service, which authorised the
apprehension of aliens not holding identity cards or other necessary documents, and the adoption of
the measures relating to such aliens as prescribed by law or by the competent authority.
The Court did not accept that approach. Section 21 of the Law on the police service did not
constitute a clear and precise legal basis given that it did not empower police officers to enter an
alien’s home. The Court further noted that subsequently to the present case, the Belgian Court of
Cassation had ruled that section 21 could not be considered as authorising the police to carry out
such a house search.
The Court concluded that the impugned interference had lacked a legal basis meeting the
requirements of Article 8, and had therefore not been “in accordance with the law”. There had
therefore been a violation of Article 8 of the Convention.
Finally, as regards the use of handcuffs, the Court considered that the Government had not
established the necessity of handcuffing the applicant in the particular circumstances of the case.
Just satisfaction (Article 41)
The Court held that Belgium was to pay the applicant 5,000 euros (EUR) in respect of non-pecuniary
damage and EUR 4,960 in respect of costs and expenses.
