issued by the Registrar of the Court

ECHR 119 (2023)

18.04.2023

The placement of an Algerian national in administrative detention for security

reasons pending his removal to Algeria did not breach the Convention

In today’s Chamber judgment¹in the case of N.M. v. Belgium (application no. 43966/19) the

European Court of Human Rights held, unanimously, that there had been:

no violation of Article 5 § 1 (f) and § 4 (right to liberty and security/right to a speedy review of the

lawfulness of detention) of the European Convention on Human Rights, and

no violation of Article 3 (prohibition of inhuman or degrading treatment).

The case concerned the detention of an Algerian national for 31 months in a closed centre for aliens

pending his removal from Belgium on grounds of a risk to public order and national security, the

review of the lawfulness of that measure, and the applicant’s conditions of detention in the Vottem

(Liège) closed centre.

The Court noted that the domestic authorities had taken the view that the applicant’s detention was

justified for reasons relating mainly to his dangerousness and to the protection of public order and

national security. Those considerations had been reinforced by the applicant’s conviction in April

2018 for membership of a terrorist group. In view of the circumstances of the case, the Court

considered that the applicant’s detention came within the scope of Article 5 of the Convention and

that the duration of his detention had not exceeded the reasonable time required to achieve the aim

pursued by the Belgian authorities, namely the applicant’s removal to Algeria. The Court further

noted that the Belgian courts had conducted a sufficient review of the detention measure. It also

held that the applicant had not been subjected to treatment contrary to Article 3 of the Convention

during his detention in partial isolation in the Vottem closed centre.

Principal facts

The applicant is an Algerian national who was born in 1949. In 1993 he had been sentenced by an

Algerian court to thirty months’ imprisonment for “procuring equipment for criminal ends and

raising funds for the Islamic Salvation Front”, a party of which he was a member in the 1990s. On his

release the applicant left Algeria for Europe, where he lodged several unsuccessful applications for

international protection, including in Belgium.

The Belgian authorities accordingly issued the applicant with several expulsion orders, including an

order dated 27 September 2017 which was accompanied by a detention order with a view to

removal and a ban on re-entering the country. The detention order – which mentioned, among

other things, that the applicant had not possessed a valid residence permit at the time of his arrest

and that a warrant for his arrest had been issued in 2015 for his involvement in the activities of a

terrorist group – was extended several times. The applicant was eventually released on 20 March

2020.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

In the meantime the applicant had been sentenced by the Belgian criminal courts to three years’

imprisonment (in 2018) for membership of a terrorist group in Syria, and to eight months’

imprisonment (in 2021) for threatening a fellow detainee.

Complaints, procedure and composition of the Court

The applicant relied on Article 5 (right to liberty and security/right to a speedy review of the

lawfulness of detention) and Article 3 (prohibition of inhuman or degrading treatment) of the

European Convention on Human Rights.

The application was lodged with the European Court of Human Rights on 14 August 2019.

Judgment was given by a Chamber of seven judges, composed as follows:

Arnfinn Bårdsen (Norway), President,

Jovan Ilievski (North Macedonia),

Egidijus Kūris (Lithuania),

Pauliine Koskelo (Finland),

Frédéric Krenc (Belgium),

Diana Sârcu (the Republic of Moldova),

Davor Derenčinović (Croatia),

and also Hasan Bakırcı, Section Registrar.

Decision of the Court

Article 5: right to liberty and security

With regard to the aim and lawfulness of the applicant’s detention, the Court noted that an order for

his administrative detention had been made on 20 September 2017, at a time when he was not

authorised to reside in Belgium but had been imprisoned there. The Belgian authorities had

consistently sought the applicant’s removal to Algeria, through successive detention orders and

throughout his detention. They had also reassessed the risk he might face in the event of his

removal. Public order and national security concerns had weighed heavily in the decision to keep the

applicant in detention while his asylum claim was being examined. Consequently, the applicant’s

initial detention and his continued detention for the subsequent periods came within the scope of

Article 5 § 1 (f). Nor was there any reason to consider that his detention had not been in accordance

with the law.

Regarding the necessity of the applicant’s detention, the Court noted that his situation could not be

compared to that of other applicants who claimed asylum but who were particularly vulnerable, in

respect of whom the Court had stressed the need to consider alternatives to detention.

Furthermore, the applicant had been able to access the medical care and psychological support

services offered to him. Accordingly, the Belgian authorities could not be criticised for not opting for

alternatives to detention.

As to the length of detention, the Court stressed that it was mindful of the particularly lengthy

duration of the applicant’s administrative detention. However, it noted that the Belgian authorities

had acted with the requisite diligence with regard to the conduct of the expulsion proceedings.

Moreover, the examination of the applicant’s third asylum application had been particularly complex

and had entailed assessing the important matter of the risks he actually faced in Algeria on account

of the overall situation in that country and of his personal circumstances. Furthermore, throughout

the examination of the asylum application, the applicant’s case had involved equally important

considerations regarding the maintenance of public order and public safety, in view of the

background information compiled by the Belgian authorities (specifically, the State security services

and the risk assessment coordinating body) and the risk of proselytism identified by those bodies.

Given the real risk that the applicant posed a danger and his previous criminal convictions, it was not

the Court’s task to call into question the domestic authorities’ assessment, which did not appear

arbitrary or manifestly unreasonable. Lastly, the ordinary courts had found on each occasion that the

applicant’s detention was justified for reasons relating mainly to his dangerousness and to the

protection of public order and national security. Those considerations had been reinforced by the

applicant’s conviction in April 2018 for membership of a terrorist group. Accordingly, the duration of

the applicant’s detention in the present case had not exceeded the reasonable time required to

achieve the aim pursued by the Belgian authorities, namely the applicant’s removal to Algeria.

The Court therefore held that there had been no violation of Article 5 § 1 (f) of the Convention.

Article 5: right to a speedy review of the lawfulness of detention

The investigating judicial authorities had systematically verified, having regard to both domestic law

and the Convention, that the applicant’s detention was aimed at his expulsion, that the

administrative authorities had acted with due diligence in that regard, that the applicant’s

dangerousness had been established, and that the asylum procedure was ongoing. No judicial

decision had found the applicant’s detention to be unlawful. Accordingly, it could not be said that

the review of his detention by the Belgian judicial authorities had not been sufficient in scope for the

purposes of Article 5 § 4 of the Convention. There had therefore been no violation of that provision.

Article 3: conditions of detention

The applicant complained of being held in partial isolation (régime de chambre) during the first

months of his administrative detention in the Vottem closed centre. In that regard the Court

reiterated that solitary confinement did not in itself constitute a violation of Article 3 of the

Convention. Furthermore, a prohibition of contact with other detainees for reasons of safety,

discipline or protection did not amount per se to inhuman or degrading treatment.

In the present case the applicant had been placed for five and a half months in a special wing for

detainees who were considered “dangerous”, where he had been in partial isolation. He had

subsequently been allowed to mix with other detainees for a few hours each day. However,

following specific incidents involving anti-social and proselytising behaviour towards other residents,

he had again been placed in partial isolation. He had been allowed limited contact with other

residents as of March 2018 and was subsequently held under the ordinary regime. Thus, the

applicant’s detention had been reassessed by the management of the centre in the light of his

background and his conduct. The domestic authorities had established that the applicant was known

for his radical views and had numerous contacts with persons connected to terrorism, and that he

was classified as level 3 out of a possible 4 on the scale of seriousness of the terrorist and extremist

threat and had been actively involved with a terrorist group while in Syria. Furthermore, the fear

that the applicant might display anti-social and proselytising behaviour and recruit other residents

on an ordinary wing had indeed materialised. Lastly, there was nothing in the applicant’s file

concerning his time in partial isolation to suggest that this had adversely affected his physical or

mental health.

Consequently, the applicant had not been subjected to treatment contrary to Article 3 of the

Convention during his detention in partial isolation in the Vottem closed centre. There had therefore

been no violation of that provision.

The judgment is available only in French.

This press release is a document produced by the Registry. It does not bind the Court. Decisions,

judgments and further information about the Court can be found on www.echr.coe.int. To receive