On 27 October, the ECtHR condemned Belgium for the removal of a Sudanese national in spite of a court decision that had ordered the suspension of his removal.

The applicant, MA, had entered Belgium unlawfully, passing through Italy, with the goal of reaching the UK. In August 2017. He was stopped by the Belgian police and was issued an order to leave the country. Subsequently, pending his removal, he was transferred to a migrant detention center. There he submitted an asylum application, in which he stated that he was a wanted person in Sudan. He discovered that the Belgian authorities were working with the Sudanese authorities to identify and return Sudanese nationals who had unlawfully entered Belgium. As a consequence, and because he did not have a lawyer, MA withdrew his application. That same month, he attended a meeting with members of the Sudanese embassy and identification mission, after which he received a travel permit to return to Sudan.

On 30 September 2017, after having consulted a lawyer, MA requested a Leuven First Instance Court to be released. However, two weeks later, and before this request was examined, the Belgian authorities warned him that he would have to board a flight to Sudan. Simultaneously, a First Instance Judge blocked the authorities from deporting the applicant, under penalty of a coercive fine, before the Leuven First Instance Court had ruled on the custodial measure. While the Belgian authorities cancelled the deportation, they nonetheless brought MA to the airport. There, he allegedly met a man in uniform who explained him that he would be sedated if he refused to board the plane and that further attempts to remove him would be organized. Finally, MA signed a statement authorizing his departure.

The ECtHR underlined that the information at that time clearly reflected a problematic general human rights situation in Sudan and, therefore, concluded that the Belgian authorities could not have ruled out a serious risk for MA. In addition, the Court reiterated that, even though the applicant carries the burden of proof regarding the individual risk that he would face in the country of origin, that burden could not lead to render ineffective the rights protected under Article 3 ECHR. In addition, the Court underlined that the assessment of an Article 3 violation should take into account the practical difficulties an applicant encounters in pursuing his application. In that respect, the Court took issue with the fact that MA did not consult a lawyer during the first week of his detention and that he was not granted access to an interpreter when he was interviewed at the detention center. These facts, together with the fact that the Belgian authorities had only asked MA very general questions about the risks that he might face and the conditions surrounding his interview, led the Court to conclude that the authorities had not carried out a sufficient prior assessment of the risks faced by the applicant under Article 3.

Regarding Article 13 ECHR, taken together with Article 3 ECHR, the Court held that the applicant did not leave Belgium voluntarily. Furthermore, it concluded that, in view of the speed with which he was deported and taking into account that a judge had prohibited MA’s return pending court proceedings, the Belgian authorities had failed to suspend the measure in compliance with a court decision, thereby rendering MA’s successful appeal ineffective. Therefore, it concluded that there had been a violation of Article 13, read together with Article 3 ECHR.

For further information:

 Photo: (CC) Miguel DiscartJanuary 2018

This article was first published in the ELENA Weekly Legal Update and also appeared in the ECRE Weekly Bulletin. You can subscribe to the Weekly Bulletin here.