ECtHR – Thimothawes v. Belgium, Application no. 39061/11, 4 April 2017

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Country of Applicant: 
Egypt
Date of Decision: 
04-04-2018
Citation: 
European Court of Human Rights, Thimothawes v. Belgium, Application no. 39061/11, 4 April 2017
Court Name: 
European Court of Human Rights (Second Section) (Işıl Karakaş, President, Nebojša Vučinić, Paul Lemmens, Valeriu Griţco, Ksenija Turković, Stéphanie Mourou-Vikström, Georges Ravarani, judges, and Hasan Bakırcı, Deputy Section Registrar)
Headnote: 

The ECtHR ruled that the detention of an Egyptian national upon arrival in Belgium was lawful as there had been no violation of Article 5(1) of ECHR and the refusal of refugee status was justified.

Facts: 

On the 1 February 2011, the applicant arrived in Belgium from Turkey. He was using a fake Canadian passport and was refused entry upon demanding asylum. He was then detained and placed in a transit centre. On the 17 he was refused refugee status and subsidiary protection. In March the applicant made his first request to be released from detention and complained of being detained in an inappropriate place. The First Instance Tribunal of Brussels declared this request unfounded. This was then confirmed by the Brussels Court of Appeal. At the end of March, an attempt to send the applicant back to Turkey was made and following this a new decision to detain him was taken.

In April, the applicant made a new request to be released, alleging that his detention was against national legislation and a violation of article 5(1) ECHR. Again, this request was declared reasonable and his immediate release was ordered, but this was appealed by the State. The Court of Appeal then accepted this appeal and so the applicant remained in detention.

The applicant made a new request for asylum and subsidiary protection in May on the basis of new documents relating to his mental health. His application was again refused by the Aliens Office on the basis that he had brought no new evidence of running a real risk of being subject to inhumane treatment in Egypt. The applicant later appealed this decision to the Council of Aliens Law Litigation (CCE) which was later rejected on account of the applicant’s lack of credibility. On the same day as the applicant’s submission of a new request for asylum, the applicant was given an order refusing his entry to the territory and a new detention order was issued. The applicant later appealed against this decision on the basis of Article 5(1)(f) and the Reception Directive. In particular, the applicant submitted that the authorities had not assessed whether the detention was appropriate in the light of his medical condition. This application was held to be unfounded since a medical opinion issued by a doctor had not come to the same conclusion re the applicant’s health. This finding was later confirmed by the Court of Appeal. The applicant was then released after the expiration of the maximum duration of detention. 

Decision & Reasoning: 

The Court first reiterates the standards underlying Article 5 ECHR, most notably that if States wish to rely on Article 5(1)(f) second sentence, a removal procedure must be in progress. Moreover, the Court reiterated that any measure depriving a person of his liberty has to be prescribed by law. The Court further stated that it was incumbent on the national authorities to interpret domestic law in conformity with European Union law. Save in the case of an arbitrary or manifestly unreasonable interpretation, the Court confines itself to assessing the compatibility of the effects of that interpretation with the Convention.

In the present case, the Court notes that each and every measure of detention enforced respected domestic legislation and was done in order to prevent the applicant’s irregular entry to the territory as well as with a view to his removal. The Court further notes that it is not necessary to assess the Belgian legislator’s implementation of the Reception Directive in national law, that is with national court’s to ascertain. Instead, and subject to an arbitrary or patently unreasonable interpretation, the Court's role is limited to verifying the compatibility with the Convention of the effects of this interpretation.  

In this case, then, the issue for the Court is to ascertain whether the measures of detention were arbitrary in the sense of the Court’s case law. Whilst the applicant did have health problems, these issues were not known at the time the applicant arrived to Belgium and thus the authorities cannot be blamed for placing the applicant in detention.  Moreover, the Court finds that as the applicant received special attention in the two closed centres where he stayed,  the issue of the applicant’s mental health was not, on its own, sufficient for a finding that his detention had been arbitrary.

In addition, the scrutiny of lawfulness conducted by the domestic courts of the detention order had taken account of the case law of the Court related to Article 5 § 1 f) of the Convention. Finally, taking into account the facts of the case, the Court found that his period of detention had not been unreasonably long, and thus the deprivation of liberty was not disproportionate.

 

Outcome: 

Application denied

Observations/Comments: 

This case summary was written by Ashley E. Mount.

Case Law Cited: 

ECtHR, Mozer v Republic of Moldova and Russia, Application No. 11138/10, 23 February 2016

ECtHR- Kanagaratnam and others v. Belgium, Application no. 15297/09, 13 March 2012

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Medvedyev and Others v France, [GC], Application No. 3394/03

ECtHR - Rusu v. Austria, Application No. 34082/02

ECtHR - Waite and Kennedy v. Germany [GC], Application No. 26083/94

ECtHR - Takush c. Greece, Application No. 2853/09

ECtHR - Ntumba Kabongo v. Belgium (dec.), no. 52467/99

ECtHR - Kholmurodov v Russia, Application No. 58923/14, 1 March 2016

ECtHR- Assanidze v. Georgia [GC], Application no. 71503/01

ECtHR - Labita v Italy, Application no. 26772/95

ECtHR - Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01

ECtHR - Rohlena v. the Czech Republic [GC], no. 59552/08, ECHR 2015

ECtHR - Mooren v. Germany[GC], no 11364/03 9 July 2009

ECtHR - Khlaifia and Others v. Italy ([GC], no. 16483/12,15 December 2016

Del Rio Prada v Spain (no. 42750/09), 21 October 2013

ECtHR - No. 29750/09, Hassan v UK, Application
Authentic Language: 
French
State Party: 
Belgium
National / Other Legislative Provisions: 
Belgium - Aliens Act 1980: article 74(5)