Ntumba Kabongo v. Belgium (dec.)

Information Note on the Court’s case-law No. 76

June 2005

Ntumba Kabongo v. Belgium (dec.) - 52467/99

Decision 2.6.2005 [Section I]

Article 5

Article 5-1-f

Expulsion

Detention of more than ten months given the repeated refusals of the applicant to board an airplane with a view to expulsion: inadmissible

Article 3

Degrading treatment

Inhuman treatment

Holding in detention for over ten months, with a view to expulsion, of a person whose asylum application had been refused: inadmissible

The applicant, a national of the Democratic Republic of the Congo, arrived at Brussels airport from South Africa, where she was a resident, on a false passport. The authorities found that the passport was false. The Aliens Office decided that the applicant should be refused entry and sent back, dismissing her request for political asylum. The authorities took the applicant to a detention centre on Belgian territory and initiated a procedure for her removal. A seat was reserved for her on a scheduled flight bound for South Africa. The applicant was transferred from the centre to Brussels airport, where she refused to board the aircraft. She was taken back to the detention centre. Three months later, during a second attempt to remove her, the applicant was escorted to the aircraft in handcuffs. She refused to board and was therefore taken back to the detention centre. The third attempt to remove her was unsuccessful for the same reason. After five months, the applicant disputed the decision to extend her detention on the ground that the maximum statutory period of detention had expired. The Court of Cassation held that it was not contrary to immigration law for a new detention order to be issued where the removal of a legally detained individual had been unsuccessful solely because of his or her unlawful opposition. The applicant’s detention with a view to removal was extended by two months because of her refusal to comply with the expulsion measure. A fresh attempt failed because of the applicant’s refusal to board the aircraft. Her detention was extended, and in the light of that new decision the applicant’s appeal against the previous detention order was found to be devoid of purpose. The fifth attempt at removal failed because of the applicant’s refusal to board. In the context of a general end-of-year pardon, the applicant was released and ordered to leave the country. She travelled to the United Kingdom, where she was given leave to remain. During each attempt to remove her, the applicant claimed that she had been held in isolation in a cellar on the day before she was supposed to leave, then locked up in the airport with her hands tied behind her back. She was not forcibly removed under police escort.

The plea of non-exhaustion of domestic remedies was rejected.

Inadmissible under Article 3 – Any mental suffering that the applicant may have undergone because of her detention for over ten months did not attain the minimum threshold of seriousness such as to constitute inhuman or degrading treatment. The extending of her detention for over ten months had not been intended to humiliate or degrade her and had not infringed her personality rights in contravention of Article 3: manifestly ill-founded.

Inadmissible under Article 5 § 1 – In construing the immigration law as authorising fresh detention measures against aliens who opposed their expulsion, the Belgian Court of Cassation had not made a manifestly erroneous application of the relevant statutory provisions or drawn arbitrary conclusions from them. In short, the extension of the applicant’s detention had been ordered in accordance with a “procedure prescribed by law”: manifestly ill-founded.

Inadmissible under Article 5 § 1 (f) – The applicant’s detention had lasted for more than ten months, whilst the procedure for her expulsion had been pending. The authorities had undertaken this procedure with the requisite diligence and could not be reproached for any period of inactivity. They had taken sufficient and adequate measures to ensure that the applicant boarded the aircraft. Accordingly, the duration of the removal procedure (over ten months) did not appear unreasonable and it had been justified to keep her in detention for that ten-month period. In short, the applicant’s detention was justified by the expulsion procedure “pending” against her: manifestly ill-founded.

Inadmissible under Article 5 § 4 – Only one of the appeals lodged by the applicant to challenge the lawfulness of her detention and to obtain her release had been declared purposeless because the competent authority had, in the meantime, issued a fresh detention order. That new decision had moreover been motivated by the most recent unsuccessful attempt to repatriate her. In short, it could not be said that there had been any systematic practice intended, by the issuance of fresh detention orders, to frustrate the appeals lodged by the applicant for a review of the lawfulness of her detention. Furthermore, the authorities had not failed to ensure “speedy” review of that lawfulness: manifestly ill-founded.

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

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