On 6 November, the European Court of Human Rights ruled on a case regarding the detention of an asylum seeker who was facing criminal charges.

The case concerned a Sri Lankan national who sought asylum in Belgium as a member of the Tamil minority. In 2010, the applicant was placed in detention due to criminal charges, while his asylum claim was refused and he was notified with an order to leave Belgian territory. Amid numerous asylum applications and challenges against the orders to leave, he remained in detention. In January 2015, a new detention measure was imposed by ministerial order pending the completion of the asylum process, due to the past criminal charges and considerations of national security. In August 2015, he was transferred to a closed centre, where he remained until his return to Sri Lanka in March 2016.

In respect of the detention period from 6 January 2015 to 29 January 2016, the Court first referred to the general principles applicable to the detention of aliens for immigration control purposes in Thimothawes v. Belgium, regarding the problematic nature of automatic and generalised detention of foreign nationals. The judges, however, saw no reason to doubt that the applicant’s detention had a clear legal basis, as national law allowed for a person to remain “at the disposal of the government” even whilst an asylum application was pending, “in exceptionally serious circumstances” related to public policy or national security.

Second, the Court noted that as the Belgian authorities’ successive detention measures were in the context of the applicant’s deportation, the case lawfully falls within the provisions of the second part of Article 5 § 1 (f). Moreover, the Court found that the detention measure was not excessive and that the domestic authorities diligently applied the internal procedural rules in order to pursue their ultimate aim of removing the applicant. Moreover, according to the Court, the applicant’s state of health had also been taken into account, as he had access to healthcare in both detention centres.

In this context, and in respect of the asylum proceedings, the Court found no excessive delays. The Court emphasised, inter alia, that it was both in the interest of the applicant and of the general interest in the proper administration of justice that the authorities carry out a thorough examination of all relevant points and, in particular, that the elements relating to the threat to national security and the applicant’s health are examined by bodies offering guarantees against arbitrariness. Consequently, the Court found that there was no violation of Article 5 § 1 of the Convention.

Based on an unofficial translation by the ELENA Weekly Legal Update.