Information Note on the Court’s case-law 206

April 2017

Thimothawes v. Belgium - 39061/11

Judgment 4.4.2017 [Section II]

Article 5

Article 5-1

Lawful arrest or detention

Article 5-1-f

Expulsion

Prevent unauthorised entry into country

Detention with a view to expulsion of vulnerable asylum-seeker with mental-health issues: no violation

Facts – The applicant, an asylum-seeker, was detained pending expulsion. He sub mitted to the European Court that the detention orders had not been properly implemented because the authorities had applied them automatically without any individual assessment of their necessity. The applicant’s mental health was such as to place him in the “vulnerable persons” category, which should have induced the authorities to conduct an individual assessment of his situation in order to ascertain whether his detention was necessary and appropriate.

Law – Article 5 § 1 (f): The Belgian authorities co uld not be criticised for disregarding the applicant’s mental disorders because they had been unaware of them when the decision was taken on 1 February 2011 to detain him in the airport transit centre in order to prevent him from unlawfully entering Belgia n territory.

In the first few weeks of his detention the applicant had consulted the psychological support services in the transit centre and then in the holding centre. However, he did not mention his health problems until he submitted his request for release on 6 Apr il 2011. From that time onwards the authorities must have been aware of his situation.

Nevertheless, the detention order of 5 May 2011 did not refer to the applicant’s specific circumstances. Like the other two detention orders, and in accordance with the provisions of the Aliens Act, the 5 May 2011 order merely referred to the fact, firstly, that the applicant had attempted to enter Belgium without fulfilling the requisite conditions, and that he had requested recognition of refugee status at the border, a nd secondly, that his continued detention in a holding centre was deemed necessary for his possible deportation.

The successive detention orders were thus worded in a succinct, stereotyped manner, providing the applicant with insufficient information on th e actual reasons for his detention.

Nonetheless, that fact did not prevent the competent courts from exercising their scrutiny, albeit limited to supervision of lawfulness, having regard to the requirements of the Court’s case-law on Article 5 § 1 (f) and the applicant’s specific situation.

Furthermore, in order to secure a finding of a violation of Article 5 § 1, the applicant would have had to establish that he had been in a specific situation conducive prima facie to a finding that his detention had been unjustified. In the present case, the applicant’s mental health did not on its own justify such a finding: the applicant had benefited from special care in both the holding centres in which he had been detained, and the reports drawn up by the psychologic al support services had not mentioned any obstacles to his detention.

Therefore, the detention order could not be deemed inappropriate in view of his mental condition, nor could it be argued that the authorities should have sought to impose less restrictiv e measures than detention.

Finally, in view of the circumstances of the case, which had involved implementing a return procedure to Turkey followed by an expulsion procedure to Egypt, and also examining two asylum applications, the length of detention coul d not be considered excessive.

Conclusion : no violation (five votes to two).

(See the Factsheet on Migrants in detention )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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