CEDH · CASELAW;CLIN;ENG — 24 janvier 2008

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Belgium - 29787/03 Judgment 24.1.2008 [Section I] Article 3 Degrading treatment Inhuman treatment Detention of illegal aliens in the transit zone of an airport for more than ten days without providing for their basic needs: violation   Article 5 Article 5-1 Lawful arrest or detention Continued detention of illegal aliens in the transit zone of an airport and in an immigration centre in breach of order for their release: violation   Facts : The applicants are Palestinian nationals. They both arrived at Brussels-National Airport in Belgium on separate flights from Sierra Leone in late December 2002. They stated that they had left Lebanon, where their lives were in danger. As neither applicant possessed a visa, they were refused entry into Belgium and immediately placed in a transit zone inside the airport. They submitted applications for asylum, which were refused. Towards the end of January 2003 the applicants were transferred to a closed detention centre for illegal aliens. In the meantime the applicants’ lawyer had lodged an application for their release, which the court allowed. On the same day, however, the applicants were transferred 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, alleging that there were no bedrooms or beds and that they were housed in the mosque 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; and that on a number of occasions they were taken to cells and left there for several hours without being given anything to eat or drink – in an attempt to persuade them to leave the country of their own free will – before being taken back to the transit zone. On an application by the applicants, on 14 February 2003 the court 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. On the following day the applicants left the transit zone but, following an identity check, they were served with an order to leave Belgian territory and immediately taken to another centre for illegal aliens. Early in March 2003 the applicants were repatriated under police escort on flights to Beirut. Law : Article 5 – The applicants had been confined to the transit zone not immediately upon their arrival but a month later, after final decisions had clearly ordered their release. The time they were to spend in the transit zone had not been specified, but they had in fact been held for fifteen days and eleven days respectively. That amounted to de facto deprivation of liberty. The mere fact that the applicants could have left the country of their own free will did not erase the interference with their freedom. The domestic court had ruled the situation illegal and incompatible with the rule of law. According to the Court’s 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. Here, however, the applicants had been left to their own devices in the transit zone, which was not an appropriate place of residence, 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 Government had failed to explain the legal basis on which the applicants had been transferred to and detained in the transit zone. “Detaining” a person in the transit zone for an unspecified, unforeseeable length of time, without the detention being based on any actual legal provision or valid judicial decision and with limited possibility of judicial control in view of the difficulties of maintaining sufficient contact for proper judicial supervision, was in itself contrary to the principle of legal certainty. As to the subsequent placement in a centre for illegal aliens, this had been ordered with total disregard for the court orders of 14 February 2003, against which no appeal had been lodged and which clearly indicated that, pending their removal from Belgium, the applicants were to be allowed freedom of movement in Belgium. Instead, while the State had clearly refused to enforce the repatriation decisions in the hope that the applicants would leave of their own free will, they had been kept in detention and no use had been made of the legal possibility of requiring them to reside in a particular place. In conclusion, the applicants’ detention had not been lawful. Conclusion : violation (unanimously). Article 3 – The applicants had been taken to the transit zone without the Aliens Office, which was responsible for the transfer, or any of the other authorities involved, bothering to consider whether they would be properly taken care of there. The Court found this surprising as the Aliens Office ran a centre where the applicants would have received more appropriate treatment on a short-term basis. However, having taken the decision to deprive the applicants of their liberty, the State should have made sure that their detention conditions were compatible with respect for human dignity. It was not enough simply to wait for the applicants to contact the centre of their own accord to provide for their basic needs. By its very nature the transit zone was designed to be used for short periods by people in transit. Its characteristics could arouse a sense of solitude in a detainee: with no outdoor area for fresh air or physical exercise, no internal catering facilities, no radio or television for contact with the outside world, the transit zone was quite unsuitable for a stay of more than ten days. The fact that staff working there had catered for some of the applicants’ needs did not make the situation the applicants had clearly had to bear any less unacceptable. Even assuming that it actually existed and that the applicants had been informed of it, the mere possibility of having three meals a day delivered would not change that conclusion. The conditions of detention the applicants had been obliged to endure for more than ten days had undeniably placed them under great psychological strain, wounded their dignity and made them feel demeaned and humiliated. Furthermore, their humiliation had been accentuated by the fact that, having secured an order for their release, the applicants had been deprived of their liberty in other premises and obliged to live in a public place, without assistance. The Court took note of the reports and observations of the United Nations Human Rights Committee, the federal mediators and the CPT, which indicated that these were not isolated cases and lent credit to the applicants’ allegation that the aim of the Aliens Office in abandoning them in the transit zone had been to oblige them to leave the country of their own accord. That being so, the applicants’ detention in the transit zone for more than ten days amounted to inhuman and degrading treatment. Conclusion : violation (unanimously). Article 41   – EUR 15,000   to each applicant in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes