On April 18, 2023, the European Court of Human Rights issued its judgment in N.M. v. Belgium. The case concerned the detention of an Algerian asylum seeker in a closed center for aliens in Belgium for 31 months, six of which were spent in partial isolation. The applicant alleged the violation of Articles 5 and 3 of the ECHR.

 

On the alleged violation of Article 5 ECHR, the applicant first pointed out the unlawfulness of his detention under Article 5 § 1 (f) ECHR. Indeed, the detention was not aimed at preventing him from entering Belgium illegally (Article 5 § 1 (f) ECHR, first part), since he was there at the request of the Belgian authorities. Moreover, he could not be considered a “person against whom action is being taken with a view to deportation” (Article 5 § 1 (f) ECHR, second part), given his status as an asylum seeker barring deportation and the absence of reasonable prospects for removal. In addition, the applicant challenged the existence of a legal basis in domestic law for his detention, as well as noting the arbitrariness of the detention in breach of Art. 5 § 1 ECHR. Specifically, on the one hand, he argued that 31 months of detention was disproportionate to the aims pursued by the Belgian authorities. On the other hand, he believed that his particularly vulnerable situation due to his old age and mental health should have resulted in a less restrictive measure than detention. Finally, the applicant complained of a violation of Article 5 § 4 ECHR, in view of the inadequacy of the review of the lawfulness of his detention, the scope of which was deemed excessively limited.

 

The Court held that the applicant could not be regarded as a person who had “not yet entered” the country within the meaning of Art. 5 § 1 (f) ECHR, first part. However, it believes that the detention was lawful under the second part of Article 5 § 1 (f) ECHR. Indeed, the asylum claim does not make administrative detention for removal contrary to Article 5 § 1 (f) ECHR. What matters is that the national authorities act with due diligence in conducting the expulsion proceeding, also considering possible risks of ill-treatment associated with it. This was done by the Belgian authorities. The European judges add that the decision to keep the applicant in detention pending his asylum application was based on concerns for public order and national security – mainly due to the applicant’s conviction for being a member of a terrorist group.

The Court then notes the compliance of the applicant’s detention with Belgian law and rules out its arbitrariness. Specifically, the arbitrariness of the measure is ruled out by first noting that the length of the applicant’s detention was not disproportionate to the aim pursued by the Belgian authorities, namely the applicant’s removal to Algeria. This was not only given the complexity of the case but also considering that the detention (and thus its length) was justified by the applicant’s dangerousness and the protection of public order and national security. Second, the Court finds that the applicant’s situation was not such as to apply alternatives to detention, even because he had had access to medical care in the administrative detention center. Regarding the alleged inadequacy of the review of the lawfulness of the detention, the Court assesses that it was sufficient in scope for the purposes of Article 5 § 4 of the Convention. There had therefore been no violation of that provision.

 

On the alleged violation of Article 3 of the ECHR, the applicant complained that he was placed in partial isolation for a period of six months during his detention without access to medical care. He believed that this had affected his mental health and his cognitive and social abilities.

 

Relying on its previous case law, the Court reiterates that solitary confinement does not in itself constitute a violation of Article 3 ECHR. In order to establish the violation, the specific circumstances of the case must be considered – particularly the severity and length of the measure, the purpose pursued by the measure, and its effect on the person concerned. The Court then notes that the applicant had been placed in partial isolation after an assessment not only of his background but also of his conduct in the center. In fact, Belgian authorities knew him for his radical views and his contacts with terrorist groups; in addition, he was involved in specific incidents consisting of anti-social and proselytizing behavior towards other residents of the center. The Court concludes by noting that there was no evidence in the applicant’s file to support his claim that he suffered physical or mental harm as a result of partial isolation. Rather, the file shows that he was cared for by the center’s medical services. On the basis of these considerations, the Court finds that the applicant had not been subjected to treatment contrary to Article 3 ECHR.

 

In light of the above, the Court finds that the applicant’s detention was ordered and executed in accordance with Articles 3 and 5 ECHR. There had therefore been no violation of the Convention in the instant case.

 

(Comment by Chiara Chisari)