CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 janvier 2008

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margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s636D9C1 { width:38.55pt; display:inline-block } .s6E27C8FE { width:159.41pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     FIRST SECTION     CASE OF RIAD AND IDIAB v. BELGIUM     (Applications nos. 29787/03 and 29810/03)         JUDGMENT     STRASBOURG     24 January 2008     FINAL   24/04/2008       This judgment is final but it may be subject to editorial revision. In the case of Riad and Idiab v. Belgium, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Loukis Loucaides, President ,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges ,   Paul Martens, ad hoc judge , and Søren Nielsen, Section Registrar , Having deliberated in private on 30 November 2006 and on 3 January 2008, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 29787/03 and 29810/03) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by certain Belgian associations and also by two Palestinian nationals, Mr Mohamad Riad and Mr Abdelhadi Idiab (“the applicants”), on 6 August 2003. 2.     The applicants alleged, in particular, that the living conditions which they had experienced in the transit zone of Brussels National Airport, where they had been held between 30 January 2003 and 15 February 2003 and between 3 and 15 February 2003 respectively, had infringed Articles 3 and 8 of the Convention and that two decisions ordering their release had not been properly implemented, in violation of Article 5 of the Convention. 3.     By a decision of 21 September 2006 the Chamber decided to join the applications (Rule 42 § 1 of the Rules of Court) and declared them partly admissible. 4.     A hearing took place in public in the Human Rights Building, Strasbourg, on 30 November 2006 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Mr   C. Debrulle , Agent of the Belgian Government and Director General, Legislation and Fundamental Freedoms and Rights Directorate, Federal Justice Department, Agent , Ms   E. Derriks , lawyer of the Belgian Government,   Counsel , Ms   V. Rolin , avocat , assistant to Ms Derriks, Ms   C. Gallant , Attaché, Human Rights Office, Legislation and Fundamental Freedoms and Rights Directorate, Federal Justice Department, Ms   N. Bracke , Attaché, Head of Department, Border Inspection Department, Aliens Office, Federal Department of the Interior, Ms   T. Michaux , Adviser/Head of Department, Appeals Department, Aliens Office, Federal Department of the Interior, Advisers ; (b)     for the applicants Ms   S. Sarolea , avocat , Ms   M.-C. Warlop , avocat ,   Counsel .   5.     The Court heard addresses by Ms Sarolea and Ms Derriks. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicants were born in 1980 and 1981 respectively. A.     The applications for asylum and for residence and their outcome 1.     The first applicant 7.     The first applicant arrived in Belgium at Brussels National Airport on flight SN 211 from Freetown (Sierra   Leone) on 27 December 2002, carrying a Lebanese travel document stating that he was a Palestinian refugee. He was refused entry to Belgium as he did not have the necessary visas. The carrier which had provided the flight was informed that, pursuant to section   74(4) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980, it was responsible for paying the costs of his return to his country of origin. 8.     On the same date the first applicant requested recognition of his refugee status, maintaining that his life was in danger in Lebanon, and was issued with a document certifying that he had applied for asylum. 9.     Also on the same date, 27 December 2002, a decision to keep the first applicant in a designated place at the border was taken on the basis of section 74/5(1)(2) of the Act of 15 December 1980. Pursuant to that decision, the first applicant was taken to Transit Centre no. 127 on the premises of Brussels National Airport. 10.     A decision refusing asylum was taken on 31 December 2002 by the Aliens Office and served on the first applicant on the same date. The first applicant lodged an appeal with the Office of the Commissioner General for Refugees and Stateless Persons. 11.     On 21 January 2003 the Commissioner General's Office upheld the decision refusing asylum; it pointed out the inconsistencies between the various accounts given by the applicant in question and concluded that on the evidence he had no reason to fear that he was in personal danger in Lebanon. 12.     An application for judicial review of the decision of 21 January 2003 of the Commissioner General's Office and an application to stay its execution were lodged with the Conseil d'Etat on 19 February 2003. At the hearing before the Court, the parties explained that those applications were declared inadmissible in 2005 on the ground that the first applicant was no longer on Belgian territory and the continued examination of his case was thus devoid of purpose. 2.     The second applicant 13.     This applicant arrived in Belgium at Brussels National Airport on a flight from Freetown on 24 December 2002 at 5.12 a.m. As he did not have a transit visa allowing him to travel onwards to London, steps were taken to refuse him entry to Belgian territory and the carrier which had provided the flight was requested to take him, or have him taken, back to the country of origin or to another State where he could be allowed entry. The second applicant was rerouted to Beirut, via Budapest. 14.     When he underwent a check in the transit zone on the same date this applicant stated that he did not wish to go to Beirut and requested recognition of his refugee status, maintaining that his life was in danger in Lebanon. He was issued with a document certifying that he had applied for asylum. 15.     Also on the same date, 24 December 2002, a decision to keep the second applicant in a designated place at the border was taken on the basis of section 74/5(1)(2) of the Act of 15 December 1980. Pursuant to that decision, the second applicant was taken to Transit Centre no. 127. 16.     A decision refusing the application for asylum was taken by the Aliens Office on 6 January 2003. That decision was served on the same date on the second applicant, who lodged an appeal with the Office of the Commissioner General for Refugees and Stateless Persons. 17.     On 21 January 2003 the Commissioner General's Office upheld the decision refusing asylum, as it was not familiar with the Palestinian organisation to which the second applicant claimed to belong. An application for judicial review and an application for a stay of execution were also lodged with the Conseil d'Etat on 19 February 2003. Like the applications lodged by the first applicant, these applications were dismissed in 2005 as they had become devoid of purpose. B.     Detention in Transit Centre no. 127 and in the closed centre in Bruges 18.     The first applicant remained in Transit Centre no. 127 from 27   December 2002 pursuant to the decision to keep him in a designated place at the border (see above). The second applicant remained there, on the same basis, from 24 September 2002. 19.     Following an attempted collective break-out from Transit Centre no.   127 during the night of 21 to 22 January 2003, the two applicants and three of their compatriots were transferred on 22 January 2002 to the Closed Centre for Illegal Aliens in Bruges (the Government explained that this institution was, by a legal fiction, treated as a centre at the border). 20.     In January 2003 their lawyer lodged an application for release on behalf of each of them before the chambre du conseil of the Brussels Court of First Instance, by registered letter posted on 14 January 2003. The chambre du conseil allowed that application by an order of 20 January 2003, being of the view that the grounds put forward by the administrative authorities to justify the deprivation of liberty were not sufficient. 21.     On the same day on which that order was made, State Counsel's Office notified the Aliens Office, by means of a form, that it had decided to lodge an appeal, which it did on the following day. On account of that appeal, the applicants remained in the closed centre, and any procedures for their repatriation were suspended pending the judgment of the Indictment Division. 22.     On 24 January 2003 the authorities arranged for both applicants to be booked on a flight to Freetown on 6 February 2003. 23.     By a judgment of 30 January 2003 the Brussels Indictment Division upheld the order made on 20 January for the first applicant's release, being of the view that the detention order did not contain “sufficient reasons in concreto ”. 24.     Following that judgment, Principal State Counsel at the Brussels Court of Appeal ordered the first applicant's immediate release. As a result of that decision, the Aliens Office had him transferred to the transit zone at Brussels National Airport (see below). 25.     On 3 February 2003 a similar judgment was delivered in respect of the second applicant. On the same date Principal State Counsel and the Aliens Office took decisions identical to those taken in respect of the first applicant, whom the first applicant rejoined in the transit zone at Brussels National Airport on 3 February 2003. C.     The stay in the transit zone in Brussels National Airport 26.     On 30 January 2003 the first applicant, as explained below (see paragraph 28), was placed in the transit zone in Brussels National Airport. He was taken there at 6.45 p.m., together with Ab., another Palestinian national who had arrived in Belgium on 25 December 2002 in the same circumstances as the first applicant. 27.     They were informed that they were being released, their luggage was returned to them and they were each given an envelope containing their personal possessions, with the exception of their passports, which remained in the possession of the federal police at the airport, and were allowed to make a telephone call to a person of their choice. They stated that they wished to telephone their lawyer. 28.     On 1 February 2003 at 1.30 p.m. they went to the federal police border inspection post and declared that they had no money or food. They were told that they could go on a voluntary basis to the “INADS Centre” at the airport and remain there pending their removal. They were taken to that centre, where the first applicant signed a statement, after the content thereof had been translated for him, agreeing to remain voluntarily at the centre and to observe its rules. According to a document from the centre, the first applicant arrived there on 1 February 2003 and left on 3 February 2003; in fact, an unsuccessful attempt to remove the applicant to Freetown was made on 3 February 2003, but he refused to board the aeroplane. Following his refusal to board, he was taken back to the transit zone. 29.     Also on 3 February 2003, the lawyer acting for the first applicant and Ab. wrote to the Minister for the Interior, claiming that her clients had suffered degrading treatment by having to spend three days in the transit zone without food or drink. She explained that a few hours after arriving in the “INADS Centre” they had simply been returned to the transit zone and told to fend for themselves in order to obtain food, drink and a return ticket. 30.     On the same date, 3 February 2003, at 6.40 p.m. the first applicant and Ab. were joined in the transit zone by the second applicant (see paragraph 28 above). Upon being transferred there he was given the same explanations as the two others and stated that he was “no longer happy with that decision” and wished to contact his lawyer. He also stated that he had no money and had only a telephone card. He again asked where the “other men” were. 31.     On 4 February 2003 the applicants' counsel applied under the extremely urgent procedure to the President of the Brussels Court of First Instance, who dismissed the application on 9 February 2003 on the ground that the applicants did not have a personal right of access to the territory, as such a right was not conferred either by the submission of an application for asylum or by the orders for their release. 32.     In the meantime a fresh attempt to remove the three persons to Freetown had been made on 6 February 2003. A further attempt to remove two of them was made on 8 February 2003. The first applicant refused to board the plane but Ab. did board it. 33.     On 9 February 2003 the applicants' counsel lodged an application to shorten the period of notice of a hearing, arguing that keeping her clients in the transit zone constituted an illegal act that infringed their right to liberty, a right confirmed by the decisions delivered in respect of their detention in the transit centre. She further maintained that keeping them in the transit zone constituted a violation of Articles 3 and 8 of the Convention. By an order of 10 February 2003 the President of the Brussels Court of First Instance granted leave to summon the Belgian State to appear at a hearing on 12 February 2003. 34.     On 11 February 2003 the applicants summoned the Belgian State, represented by the Minister for the Interior, to appear before the President of the Brussels Court of First Instance, sitting as the urgent applications judge, for the purpose of securing an order for the State to allow them to enter Belgian territory, together with a penalty of 1,000 euros (EUR) per hour from notification of the order in the event of failure to comply. The applicants submitted that by keeping them in a closed space, despite the fact that the chambre du conseil of the Indictment Division had ordered their release, the State was in breach of the domestic and international provisions guaranteeing the right of personal liberty. In addition, they were completely destitute, without lodging or resources and left to their own devices in the transit zone, where they had no proper facilities and for several days had had neither food nor drink, which constituted inhuman and degrading treatment. They further submitted that some members of the federal police had violently struck and beaten them inside the Muslim place of worship in the transit zone. 35.     On 12 February 2003 the authorities arranged for the applicants to be booked on a flight to Beirut on 15 February 2003. 36.     In submissions filed with the President of the Court of First Instance, counsel for the State objected, in particular, that the applicants had not applied for judicial review of the decisions of the Commissioner General's Office or for a stay of their execution. 37.     By an order of 14 February 2003 the President of the Brussels Court of First Instance ordered the State to allow the applicants to leave the transit zone freely and without restriction, with a penalty of EUR 1,000 per hour with effect from notification of the order in the event of failure to comply. The decision delivered in the context of application no. 29787/03 reads as follows: “It is common ground that the applicant is at present subject to a decision of 3   January 2003 to remove him from national territory, upheld on 21 January 2003. The time-limit for bringing an action for a stay of execution and for judicial review does not have suspensive effect; nor does the application for regularisation under section 9(3) of the Act of 15 December 1980 which the applicant submitted on 28   January 2003. As the applicant's administrative status is binding on the court, it must take note of the fact that the applicant is therefore not entitled to remain on Belgian territory. Nonetheless, the decision of the Indictment Division is also binding on the court and in the present case, that division ordered the applicant's immediate release. It is also common ground that the Indictment Division was aware of the applicant's administrative status and in particular of the decision of the CGRA and therefore ordered his release with full knowledge of the facts. It is not for this court to adjudicate on that status but, rather, on the way in which that decision to release the applicant is implemented by the Belgian State, all other things being equal. The defendant maintains that, in view of the fact that the applicant has not been authorised to enter national territory as such, it was correct to take the view that the applicant's release should be effected in the transit zone, since that zone is not an area where the law does not apply but is in fact part of the Belgian Kingdom for persons in transit in Belgium and those who have not yet been authorised to enter the national territory as such. The Court of Cassation has held that 'as regards the access, residence, establishment and removal of aliens, it does not follow from the legal distinction between the port area and the rest of the territory of the Kingdom that the transit zone is not part of the Kingdom and that the law referred to does not apply there' (Court of Cassation, 22   June 1999, Pas. 1999, 957). The closed centres are in reality nothing more than extensions of the transit zones, antechambers to the territory of the Kingdom, the only difference being that, unlike the transit zone, they are designed to be capable of accommodating persons for a more or less long period in what are assumed to be decent conditions. While the defendant's reasoning can therefore be followed in so far as it considers that by being present in the transit zone the applicant was in fact on Belgian territory, that reasoning cannot be followed where it considers that such presence amounts to 'release'. It cannot be accepted that the legislature, by creating centres at the borders, specially equipped to accommodate persons who are being held pending leave to enter the Kingdom or pending deportation, and by providing that persons held in those centres have a right of appeal to the chambre du conseil , took the view that if their release was ordered by the chambre du conseil and then by the Indictment Division, those persons could be sent to the transit zone, which is wholly unequipped to receive them, since this would place them in an even more precarious and adverse situation. If release limited to the transit centre were to be accepted, that would amount to allowing the Belgian State unilaterally to block a court decision ordering release on the basis of a person's administrative status, when that administrative status had been taken into consideration by that court and must have constituted a ground of its decision ordering release. Since 21 January 2003 the parties have both known that the removal order is enforceable, since the applicant's appeal to the CGRA was rejected and no urgent application for a stay of its execution was made. Since then the applicant has shown no intention of complying voluntarily with the removal order. Nor has the Belgian State forcibly removed him since then. Since the State is now required to comply with the decision ordering the applicant's release, there are two possibilities: either the defendant prefers to wait until the applicant decides to leave voluntarily, but in that case, while awaiting his departure, the State must allow him to move freely within the territory (in observance of res judicata ), or the defendant assumes its responsibilities and provides itself with the means to enforce the order for the applicant's return in order to ensure compliance with its own administrative decisions. In that regard, the Law allows the Belgian State to order the alien in question to reside in a specified place pending implementation of the order for his removal (section 73 of the Act of 15 December 1980). What is unacceptable and contrary to the rule of law in the present case is that the Belgian State should place the applicant in another closed place (the transit zone) in which the living conditions are inhuman and degrading, in the hope that the applicant will then decide to implement the removal order 'voluntarily'. In transferring the applicant from the closed centre at Melsbroek to the transit zone, the Belgian State committed an illegal act. On the basis of the file as it currently stands, the release ordered by the Indictment Division necessarily means that, until such time as he is removed, the applicant is free to leave the transit zone, without prejudice to the Ministry's right to order the applicant to reside in a specific place (section 73). That solution to a wholly contradictory situation is the only one possible if the procedure under section 71 of the Act of 15 December 1980 is not to be reduced to a farce. In the light of the foregoing, the application must be allowed in accordance with the operative part of the present order.” The decision delivered in connection with application no. 29810/03 is based on the same reasoning. 38.     The applicants' lawyer sent that decision by fax on 14 February 2003 to the Aliens Office, which cancelled the booking made for the flight on 15 February 2003. On 15 February 2003 the Office was instructed to allow the applicants to leave the transit zone, without restriction. 39.     The orders of 14 February 2003 were served on the Belgian State, by bailiff, first on 17 February 2003 to the office of the Minister of Justice; the order made in favour of the first applicant was served for a second time, on 28 February 2003, on the federal police border inspection post at Brussels National Airport. 40.     Both applicants left the transit zone on 15 February 2003, in the late morning; the precise time was not stated. 41.     The parties differed as to the situation which the two applicants encountered in the transit zone. 42.     The applicants stated that the transit zone had no bedrooms and, a fortiori , no beds, and that they were housed in the mosque located there. They were taken in by the Muslim counsellor, who took them in again after the various attempts to remove them. They remained for several days without food or drink, receiving food only irregularly from the cleaning staff, the company running the airport, the Muslim counsellor or the lay counsellor at the airport. The two counsellors explained in their testimony that the applicants' situation was unbearable, mentioning that they had been abandoned or “deserted” by the authorities. The applicants were unable to wash themselves or to launder their clothes. They were often checked by the airport police; on several occasions they were placed in a cell and left there for several hours without food or drink, in an attempt to force them to agree to leave the country voluntarily, then taken back to the transit zone. They were also violently struck and beaten inside the mosque by certain members of the federal police. 43.     The Government submitted that, following the criticisms in a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) in 1993, the situation in the transit zone at Brussels National Airport had been remedied by, inter alia , setting up the “INADS Centre” on the airport premises. The centre was able to take in, on a voluntary basis, persons staying in the transit zone and provide them with bed and board. In its 1997 report on its visit to Belgium, the CPT observed that the material conditions and the activities offered in the “INADS Centre” could generally be described as satisfactory for a stay of not more than a few days, with just one exception (the lack of provision for those staying in the centre to enjoy fresh air). In addition, persons in the transit zone awaiting a reservation on a flight for the purpose of their removal were able to receive meals via the control services. A federal police circular of 31   October 2003 confirmed that practice and reminded the various services of their obligations in that regard. It was apparent from that circular that the team dealing with the case of a particular alien was responsible for distributing meals to him or her and that upon arriving in the transit zone aliens were informed that they could go to the “arrivals” level three times a day to be given a meal. The team responsible ordered three meals per person per day at the “INADS Centre”. Although that procedure had been properly confirmed only by the circular of 31 October 2003, the fact nonetheless remained that the first applicant had been informed on 1   February 2003 that he could be housed and fed on a voluntary basis in the “INADS Centre”. D.     The applicants' detention in the Merksplas closed centre 44.     On 15 February 2003 at 11.30 a.m. the applicants, after leaving the transit zone, were subjected to an identity check by officials of the federal police responsible for border control. After finding that the applicants were not in possession of a valid residence permit, the police drew up an administrative report for each of them. The reports stated that the applicants were travelling together and that they spoke English in addition to their mother tongue. The police contacted the Aliens Office at 12.30 p.m. and were instructed to detain the applicants so that they could be served with an order to leave the territory together with a decision ordering their removal and a decision ordering their detention for that purpose. A decision to that effect was served on them on the same date, at an unspecified time, by an officer from the Aliens Office. Both applicants refused to sign. 45.     The first applicant was informed of those measures and was told that, with a view to their implementation, he was being taken to the Merksplas centre for illegal aliens. He stated that he objected, on the advice of his counsel. During the journey to Merksplas this applicant complained that the handcuffs placed on him were too tight around his wrists. The journey was interrupted at 2.45 p.m. so that the handcuffs could be loosened. 46.     The second applicant was informed of those measures and told that he would be taken to the centre for illegal aliens and he too stated that he objected, on the advice of his counsel, and resisted the police who were putting him in the van being used to transfer the two applicants. A few minutes after the van was closed, it was noted that, although he was handcuffed, the second applicant had intentionally injured himself by banging his head against the van window, which was protected by a grille. It was then decided to take him to Merksplas in a police vehicle and Velcro bands were placed round his arms and legs to prevent any mutilation. According to the report drawn up on that occasion, the applicant told the members of the escort that he would use his self-inflicted injuries as evidence to support a complaint against the police. Upon arriving at Merksplas he was examined by the doctor at the centre, who noted the presence of external injuries, namely a bruise and a small wound (“ klein wondje ”) on his forehead. 47.     On 19 February 2003 the lawyer representing the two applicants wrote to the Minister for the Interior to complain about his clients being placed in a closed centre in spite of the orders made on 14 February 2003. On the same date he had lodged an application with the Conseil d'Etat for judicial review of the decision of 21 January 2003 of the Commissioner General's Office and an application for a stay of its execution (see above). E.     The applicants' removal 1.     The first applicant 48.     On 20 February 2003, measures were taken to remove the first applicant to Beirut, but the order for his repatriation was subsequently set aside. On 24 February 2003 the Aliens Office instructed the Border Inspection Department to make arrangements for his removal as soon as possible. His repatriation was rearranged for 8 March 2003. 49.     On 8 March 2003 the first applicant left Merksplas and his personal effects, his luggage and the sums of EUR 45, 250 United States dollars (USD) and 1,000 Lebanese pounds which he had been carrying on his arrival were returned to him. He had previously been informed of the repatriation procedure that would be followed and of the measures of physical restraint that might be taken. Following a discussion, he stated that he no longer objected to being repatriated, but expressed the wish that certain conditions should be observed. He asked, in particular, that he should not be handcuffed and that he should carry his passport. He was told that those conditions could not be met, in view of the circumstances. 50.     The applicant was repatriated on a flight to Beirut, via Moscow, escorted by three police officers. The first applicant was placed in fabric handcuffs before being taken on board. The handcuffs were removed after take-off. During the flights and while waiting in the transit zone at Moscow Airport he was given food and drink. The members of the escort reported no incident. 2.     The second applicant 51.     On 21 February 2003, measures were taken to remove the second applicant to Beirut, but the order for his repatriation was subsequently set aside. 52.     The second applicant was repatriated on 5 March 2003. Upon his departure from Merksplas, his personal effects, his luggage and a sum of EUR 150 were returned to him. According to the report drawn up in connection with his removal, he arrived at the airport at 4.45 p.m. He was searched and placed in a cell. At 8.35 p.m. the officials in charge of his repatriation questioned him in order to determine the extent of his cooperation with the removal order. During that interview, he indicated that he had realised that he had to return to Beirut. He allegedly added that he had not been happy with his situation for two months and that he had the impression that he had been a pawn in a game between his lawyer and the Ministry officials. He was allowed to telephone his family and contacted his sister, who was informed of the precise details of the flight and of the scheduled time of arrival. In order to prevent any attempt at resistance, the members of the escort decided, in view of the information in their possession and the circumstances of the transfer on 15 February 2003, to use measures of physical restraint. The applicant was wearing fabric handcuffs and had Velcro around his ankles when he boarded the flight to Beirut via Moscow. The boarding of the plane, the flight and the transit passed without incident. The applicant was released from his restraints as soon as the plane reached cruising altitude and he was given food, drink and cigarettes during the journey. Upon his arrival in Beirut his passport was returned to him. Members of his family were waiting for him there. The Belgian consul in Beirut was also present at the airport. ... THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 58.     The applicants maintained that the fact that they had been placed in the transit zone following their respective arrests on 30 January 2003 and 3   February 2003 and then placed in Merksplas following the order of 14   February 2003 infringed Article 5 of the Convention, since those measures had been applied in breach of the court decisions ordering their release, which had not been executed with the diligence, promptness and good faith which that provision required in guaranteeing strict judicial supervision of any deprivation of liberty. The relevant provisions of Article 5 of the Convention read as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (f)     the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. ... 4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” ... B.     Merits 64.     The applicants submitted that as regards their transfer to the transit zone, the Government were playing with words in regarding the transfer as a release. All the independent bodies which had visited the transit zone spoke of detention. Furthermore, what would be the point of judicial review of the lawfulness of an alien's detention “at the border” on his or her arrival on Belgian territory if the Aliens Office's practice of subsequently placing aliens in the transit zone were accepted? The orders of 14 February 2003 had answered that question by making clear that, in those circumstances, such judicial review would be reduced to a mockery; the orders used the word “farce”. In using such a stratagem, the State had not complied specifically and effectively with the decisions of the investigating courts but had embarked upon a parody which rendered nugatory the guarantee which it had put in place. The same applied to the circumstances leading to the applicants' detention at Merksplas. The applicants, who noted that their “review” was concomitant with their leaving the transit zone, observed that the use of ruses by the authorities had been firmly condemned by the Court (citing Čonka v. Belgium , no. 51564/99, §§ 42-44, ECHR 2002-I). They also observed that deprivation of liberty was merely an option in Belgian law and was not automatic, as the decisions adopted by the chambre du conseil , the Indictment Division and the President of the Brussels Court of First Instance showed. However, the Aliens Office's position consisted in making deprivation of liberty the rule for every alien not authorised to enter the territory, without any consideration as to whether the measure was appropriate or proportionate. 65.     The technique of placing persons in the transit zone in order to circumvent decisions ordering their release had been denounced in an opinion of the Federal Ombudsman of 14 September 2004 and its consequences had been emphasised in the final observations of the United Nations Human Rights Committee of 30 July 2004 concerning Belgium. The applicants also noted the criticisms expressed in 2003 and 2004 by the European Union and the relevant conclusions in the Committee against Torture's Report of 25 May 2003 concerning Belgium, and referred to other recent texts issued by institutions of the Council of Europe – the Committee of Ministers, the Commissioner for Human Rights and the Parliamentary Assembly – which supported their analysis. In the report on the visit carried out in April 2005, the CPT had once again recommended that the Belgian authorities should end the impugned practice for good. In a judgment of 29   September 2005 the Brussels Court of Appeal, upholding an order of the chambre du conseil of the Brussels Court of First Instance of 28 January 2004, had held that transfer to the transit zone had not amounted to the implementation in good faith of a decision ordering the release of an alien held in the detention centre and had constituted an illegal act. 66.     The Government observed that, following the judgments of 30   January and 3 February 2003, the applicants had been immediately released and had left the centre for illegal aliens in Bruges. However, as they had not been allowed to enter the territory owing to the decisions refusing them entry, which were still in force, they had been taken to the transit zone. That measure had implemented the above-mentioned decisions in accordance with domestic law and with the domestic courts' interpretation of it. The investigating courts had no jurisdiction to set aside or stay the execution of decisions refusing entry or ordering removal. Under section 72, subsection 2, of the Act of 15 December 1980, their role was limited to ascertaining whether administrative decisions depriving individuals of their liberty were in accordance with the law. In any event, the applicants' transfer to the transit zone could not be regarded as deprivation of liberty. The order of 14 February 2003 had departed from domestic and international case-law in considering that the transit zone was a “closed place”. The only restriction placed on the applicants' freedom was that they had been prohibited from entering Belgian territory. Furthermore, the applicants had been duly informed of their situation in English, a language which they knew, and their luggage, money and personal effects had been returned to them. They had been free to move and, in particular, to leave Belgian territory. The authorities had also given them the opportunity to do so by taking a flight on which seats had been booked in their names, but the applicants had refused these opportunities on three occasions and one occasion respectively. In those circumstances, the applicants must be considered to have been at the origin of the complaint which they had put forward and the State was therefore not responsible for the situation created ( citing Mogoş v. Romania , no. 20420/02, 13   October 2005). 67.     As regards the detention in Merksplas, the Government stated that, following the orders of 14 February 2003, the applicants had been authorised to leave the transit zone on 15 February 2003 and to have access to Belgian territory. However, they had not had leave to remain there. In the course of checks carried out on 15 February 2003 at 11.30 a.m. it had been found that they were in Belgian territory without being in possession of the necessary documents, and orders to leave the territory, together with a decision to expel them and a decision to deprive them of their liberty for that purpose, had been served on them, on the basis of section 7 of the Act of 15 December 1980. Noting that the words “in accordance with a procedure prescribed by law” essentially referred back to domestic law (citing Winterwerp v. the Netherlands , 24 October 1979, Series A no. 33; Steel and Others v. the United Kingdom , 23 September 1998, Reports of Judgments and Decisions 1998-VII; and Shamsa v. Poland , nos. 45355/99 and 45357/99, 27 November 2003), the Government explained that the deprivation of liberty in question was governed by the above-mentioned provision, which was extremely precise in that regard. The measures taken on 15 February 2003 to deprive the applicants of their liberty had satisfied the relevant criteria set by the Administrative Jurisdiction and Procedure Court ( Cour d'arbitrage ) and had been wholly necessary and proportionate. As the impugned decisions stated, various attempts had already been made to remove the applicants and on each occasion they had refused to comply. The competent authorities had therefore been entitled to take the view that there was little prospect that the applicants would voluntarily comply with the new decisions taken against them. The Government further observed that although the applicants had had the opportunity to appeal against these decisions to the chambre du conseil and had been informed of their right of appeal, they had failed to do so although their detention had begun on 15   February 2003 and ended on 8 March 2003. Nor could such a period of detention be considered excessive, according to the case-law (they cited Singh v. the Czech Republic , no. 60538/00, 25   January 2005, and Chahal v.   the United Kingdom , 15 November 1996, Reports 1996 ‑ V), and their removal had taken place within the period of two months provided for in section 7 of the Act of 15 December 1980. 68.     The Court must determine in the first place whether the placing of the applicants in the transit zone constituted a deprivation of liberty within the meaning of Article 5 of the Convention; the question of their stay in Merksplas does not give rise to any dispute in that regard. The Court observes that it has already found that holding aliens in an international zone involves a restriction upon liberty which is not in every respect comparable to that which obtains in detention centres. However, such confinement is acceptable only if it is accompanied by safeguards for the persons concerned and is not prolonged excessively. Otherwise, a mere restriction on liberty is turned into a deprivation of liberty (see Amuur v.   France , 25 June 1996, § 43, Reports 1996 ‑ III). However, the applicants in the present case were confined in the transit zone not upon their arrival in the country but more than one month later, after decisions had been given ordering their release. In addition, their confinement was ordered for an indefinite period and eventually lasted fifteen days and eleven days respectively. Furthermore, the mere fact that it was possible for the applicants to leave voluntarily cannot rule out an infringement of the right to liberty (ibid., § 48). The Court concludes that the applicants' confinement in the transit zone of the airport amounted to a de facto deprivation of liberty. 69.     The Court must therefore examine the compatibility of the deprivations of liberty found in the present case with paragraph 1 of Article   5 of the Convention. 70.     The Court reiterates that in order for detention to be in keeping with Article 5 § 1 (f) of the Convention it is sufficient that an expulsion procedure is in progress and that the person concerned has been detained with a view to deportation; it is therefore unnecessary to consider whether the underlying decision to expel him could be justified under national law or Convention law or whether the detention could be considered reasonably necessary, for example to prevent his fleeing or committing an offence (see Chahal , cited above, § 112). The Court has, more specifically, held that it is normal that States, in the exercise of their “undeniable ... right to control aliens' entry into and residence in their territory” (see Amuur , cited above, §   41), have the right to detain would-be immigrants who – whether or not by applying for asylum – have sought permission to enter the territory. However, the detention of a person constitutes a major interference with individual freedom and must always be subject to rigorous scrutiny. The question also remains whether the detention was effected “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1. 71.     The Court reiterates that in relation to whether a detention was “lawful”, including whether it was in accordance with “a procedure prescribed by law”, the Convention refers essentially to national law and establishes the need to apply its rules, but it also requires that any deprivation of liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see Dougoz v. Greece , no. 40907/98, §   54, ECHR 2001-II; Markert-Davies v. France (dec.), no.   43180/98, 29   June 1999; Amuur , cited above, § 50; Wassink v. the Netherlands , 27   September 1990, § 24, Series A no. 185; and Bozano v.   France , 18 December 1986, § 54, Series A no. 111). 72.     Article 5 § 1 thus primarily requires any arrest or detention to have a legal basis in domestic law (see Bozano, cited above). However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must moreover ascertain whether domestic law itself is