ECHR: immigration detention judgment

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CHAMBER JUDGMENT 
RIAD AND IDIAB v. BELGIUM

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Riad and Idiab v. Belgium (application nos. 29787/03 and 29810/03).

The Court held unanimously that there had been:

·      a violation of Article 5 (right to liberty and security) of the European Convention on Human Rights;

·      a violation of Article 3  (prohibition of inhuman or degrading treatment) of the Convention.

Under Article 41 (just satisfaction) of the Convention, the Court awarded each of the applicants 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 13,374.60 for costs and expenses. (The judgment is available only in French.)

1.  Principal facts

The applicants, Mohamad Riad and Abdelhadi Idiab, are Palestinian nationals who were born in 1980 and 1981 respectively and live in Lebanon.

The applications concerned in particular the conditions in which the applicants were detained in the transit zone of Brussels-National Airport following their unlawful entry into Belgian territory.

The applicants both arrived in Belgium at Brussels-National Airport on flights from Freetown (Sierra Leone), Mr Riad on 27 December 2002 and Mr Idiab on 24 December of the same year. They declared that they had left Lebanon, where their lives were in danger, had travelled via the Ivory Coast and Sierra Leone, and wished to go on to the United Kingdom where they intended to seek political asylum.

As neither applicant possessed a visa, they were refused entry into Belgium and as a result each of them was placed on the day of arrival in “Centre 127”. They submitted applications for asylum, which were refused by the Aliens Office in decisions which were subsequently upheld by the Commissioner for Refugees and Stateless Persons.

Following an attempted collective break-out from Centre 127, the applicants were transferred on 22 January 2003 to the Closed Detention Centre for Illegal Aliens in Bruges. In the meantime the applicants’ lawyer had lodged an application for their release, which the chambre du conseil of the Brussels Court of First Instance allowed on 20 January 2003. However, the applicants’ detention continued pending their repatriation. The orders for their release were upheld on appeal, on 30 January 2003 in Mr Riad’s case and on 3 February 2003 in Mr Idiab’s case. Nevertheless, in both cases the applicants were transferred on the very same day to the transit zone of Brussels-National airport pending their removal from Belgium.

The applicants complained of the conditions in which they were detained in the transit zone. They asserted that it did not have bedrooms or beds and that they were housed in the mosque which is located there; that they went several days without being given anything to eat or drink and received food only from the cleaning staff or the company which ran the airport; that they were not able to wash themselves or launder their clothes; that they were repeatedly subjected to security checks by the airport police; that on a number of occasions they were taken to the cells and left there for several hours without being given anything to eat or drink, in an attempt to force them to leave the country voluntarily, before being taken back to the transit zone; and, that they were violently struck and beaten inside the mosque by certain members of the federal police.

On 14 February 2003, on an application by the applicants, the President of the Brussels Court of First Instance ordered the Belgian State to permit the applicants to leave the transit zone freely and without restriction, subject to a coercive fine of EUR 1,000 per hour of default, commencing with service of the order. On the following day the Aliens Office received the instruction to permit the applicants to leave the transit zone.

They accordingly left the transit zone on 15 February 2003, but, following an identity check soon after, they were served with an order to leave Belgian territory and were taken to the Merksplas Detention Centre for Illegal Aliens.

Mr Idiab and Mr Riad were repatriated under police escort on 5 and 8 March 2003 respectively, on flights to Beirut via Moscow.

2.  Procedure and composition of the Court

The applications were lodged with the European Court of Human Rights on 6 August 2003 and declared admissible on 21 September 2006.

A public hearing took place in the Human Rights Building, Strasbourg, on 30 November 2006.

Judgment was given by a Chamber of seven judges, composed as follows:

Loukis Loucaides (Cypriot), President, 
Anatoli Kovler (Russian), 
Elisabeth Steiner (Austrian), 
Khanlar Hajiyev (Azerbaijani), 
Dean Spielmann (Luxemburger), 
Sverre Erik Jebens (Norwegian), judges, 
Paul Martens (Belgian), ad hoc judge, 
 
and also Søren Nielsen, Section Registrar.

3.  Summary of the judgment2

Complaints

Relying on Articles 3 (prohibition of inhuman and degrading treatment) and 8 (right to respect for private and family life), the applicants complained of the way they were treated in the transit zone and while being deported. They further complained, under Article 5 (right to liberty and security), about their detention in the transit zone and at Merksplas.

Decision of the Court

Article 5

The Court noted at the outset that a situation in which the Aliens Office was able, on two occasions, to maintain the applicants in detention in spite of the fact that the previous detention orders had been overturned and the applicants’ release clearly ordered by final decisions raised serious concerns about the principle of lawfulness and the proper execution of judicial decisions. In this regard, the Court noted that the President of the Brussels Court of First Instance had drawn attention to the unlawfulness of the placement and continued detention of the applicants in the airport transit zone and had noted that this was unacceptable and contrary to the rule of law. The Court observed that a similar conclusion regarding unlawfulness had previously been reached by the President of the Nivelles Court of First Instance and later by the Brussels Court of Appeal, the United Nations Human Rights Committee and the Panel of Federal Ombudsmen.

Accordingly, the Court considered that the transfer and detention in the transit zone had not represented a good-faith application of the immigration legislation, since it appeared that those actions had been manifestly contrary to the judgments of 30 January and 3 February 2003 and that the Aliens Office had knowingly exceeded its powers.

The Court also pointed out that, under its case-law, there had to be some relationship between, on the one hand, the ground of permitted deprivation of liberty relied on and, on the other, the place and conditions of detention. In that respect, it noted that it was clear from reports by the CPT (European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment) that the transit zone was not an appropriate place of residence. Yet, from 3 February 2003, the applicants had been left to their own devices in the transit zone, without any form of humanitarian or social assistance. In that respect, it was also relevant that the detention measures in question applied to foreign nationals who, in the applicants’ case, had committed no offences other than those related to their residence status.

The Court also noted that the Government had failed to explain the legal basis on which the transfer and detention in the transit zone had been conducted.

With regard to the placement in Merksplas, the Court noted that the orders of 14 February 2003 indicated clearly that, until such time as the applicants were repatriated, the State was to allow them to move about the territory freely, unless the Ministry decided to require them to stay in a specific location. Although the State clearly refused to proceed with enforcement of the repatriation decisions and hoped, in spite of previous failed attempts, that the applicants would leave of their own accord, it had continued to detain them under other decisions. The detention in Merksplas had therefore been imposed in total disregard for the previous orders. The Court had pointed out on several occasions that the implementation of final judicial decisions was essential in a State which respected the rule of law.

In conclusion, the Court considered that the applicants’ detention after 3 February 2003 had not been lawful, in violation of Article 5 § 1.

Article 3

The Court noted that when the applicants were taken to the transit zone, the Aliens Office, which was responsible for this transfer, had taken no measures to ensure that they would receive appropriate support.

The Court expressed surprise at the attitude of the Aliens Office, since it ran a centre in which the applicants could have been housed more appropriately on a short-term basis, namely the “INADS” centre. The Court noted the reports and observations of the UN Human Rights Committee, the Federal Ombudsmen and the CPT, which showed that those were not isolated acts on the part of that Office and substantiated the applicants’ allegation that the purpose of the Aliens Office in abandoning them in the transit zone was to oblige them to leave the country of their own accord.

The Court considered that the transit zone was not an appropriate place for the period of detention which the applicants had been obliged to spend in it. By its very nature, it was a place intended to receive people for extremely short periods of time. The transit zone, the nature of which could arouse in detainees a feeling of solitude, had no external area for walking or taking physical exercise, no internal catering facilities, and no radio or television to ensure contact with the outside world; it was in no way adapted to the requirements of a stay of more than ten days.

The Court considered that the conditions of detention which the applicants had had to endure for more than ten days had indeed caused them considerable mental suffering, undermining their human dignity and arousing in them feelings of humiliation and debasement. In addition, the humiliation felt by the applicants had been exacerbated by the fact that, having obtained a decision ordering their release, they had been deprived of liberty in other premises. The applicants must also have felt humiliated by the obligation to live in a public place, without support.

In those circumstances, the Court considered that the fact of detaining the applicants for more than ten days in the premises in question had amounted to inhuman and degrading treatment, in violation of Article 3.

Article 8

The Court considered that no separate question arose under Article 8, as the events on which this complaint was based had already been examined in the context of Article 3.

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