Information Note on the Court’s case-law 260

March 2022

Sabani v. Belgium - 53069/15

Judgment 8.3.2022 [Section III]

Article 8

Article 8-1

Respect for home

Entry of police into home, without legal basis or consent of alien who let them in, in connection with removal decision: violation

Facts – The applicant, a Serb national, was arrested in her home by the police and placed in administrative detention after she had been ordered to leave the country, with which order she had failed to comply.

In Belgian law aliens who are issued with such an expulsion order are given a time-limit within which they must leave the national territory. In practice, on expiry of the time-limit, the municipal police are sent to the alien’s declared address to verify whether he or she had complied with the expulsion order If not the police are empowered to apprehend and arrest them.

The applicant complained that the police had entered her home without her consent in order to check on and arrest her in breach of her right to the inviolability of her home. The Government submitted that the arrest had taken place outside the applicant’s home.

Law – Article 8

(i) Existence of an interference

The point at issue was to interpret the reports drawn up by the police in such a way as to establish the exact circumstances surrounding the applicant’s arrest in her home.

The police went to the applicant’s home address in order to check on her situation. She provided a consistent account of her version of the circumstances surrounding her arrest, claiming in court and to the police that the officers had entered her home.

Conversely, the police reports did not state that the checks and the applicant’s arrest had taken place outside her home, as maintained by the Government. Moreover, it was rather inconsistent to state, on the one hand, that the applicant had come out of her apartment for the police check and, on the other hand, that she had been uncooperative with the officers.

It was not established that the applicant had waived her right to the inviolability of her home. The entry in the police report drawn up subsequently to the administrative report on the same day stating that she had opened the door on the arrival of the police was insufficient to deduce that she had permitted them to enter her home. Even supposing that she had given such permission, there was nothing to suggest that she had done so in a free and informed manner. On the contrary, the police record showed that the officers had gone directly to her apartment, and had therefore not notified her in advance of their visit nor, a fortiori , of the reason for the latter, before their arrival at her home. As for the ex post facto judicial review by the domestic courts, it had shed no light on the circumstances in which the applicant had allegedly given her consent.

Thus the applicant had submitted prima facie evidence of the incursion into her home by the police officers, which evidence the Government had failed convincingly to refute. There had therefore been an interference with the applicant’s right to respect for her home.

ii. Lawfulness of the interference

The Government failed to advance any adequate legal basis to justify the interference. They did, however, highlight the ex post facto review conducted by the Indictments Division of the Court of Appeal

In Belgian law, the inviolability of the home is specifically enshrined in Article 15 of the Constitution, explicitly stating that no house search may take place except in the cases provided for by the law and in the form prescribed by the law.

In the instant case, the court of first instance, meeting in camera , had issued an order relying on the unlawfulness of the applicant’s residence in the country to justify depriving her of her liberty and rejecting the argument that Article 8 had been breached on grounds of unlawful interference with her home.

At the appeal level, the Indictments Division merely noted that the applicant’s arrest at her home had complied with Article 8 given that it had been in line with the tasks of the police service as set out in section 21 of the Law on the Police Service. However, that provision could not serve as a legal basis because it did not empower police officers to enter an alien’s home. In fact, subsequently to the facts of the present case, the Court of Cassation had ruled that section 21 could not be deemed to authorise the police to conduct such house searches.

The impugned interference had therefore lacked any legal basis and had therefore not been “in accordance with the law”.

Conclusion : violation (unanimous).

The Court also unanimously found a violation of Article 8 on the grounds that the Government had not established the need to handcuff the applicant during her arrest in her home, in her daughter’s presence.

Article 41: EUR 5,000 in respect of non-pecuniary damage.

(See also Bože v. Latvia , 40927/05, 18 May 2017)

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

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