Firoz Muneer v. Belgium (no. 56005/10) [Article 5 ECHR]

Friday, October 4, 2013

The applicant, Mr. Muneer, is an Afghan national who arrived in Belgium in 2009 and applied for asylum. As it appeared that he had been in Greece previously, Belgium arranged for his return under the Dublin regulation. Mr. Muneer was ordered to quit the Belgian territory and placed in a detention centre. His return to Greece was organised, but after he refused to board the plane, a second detention order valid for two months was issued. His appeal against this decision was successful, as the first instance court found that the risk he ran upon return to Greece had not been taken into account. The court ordered his immediate release. This decision was confirmed by an appeals court, which pointed out that the applicant would be at real risk of treatment contrary to Article 3 ECHR if returned to Greece. However, he was kept in detention because the state appealed against this second judgment. The Cassation Court quashed it and ordered the appeals court to decide again, arguing that it had not indicated on what international reports it had based its conclusions about the situation in Greece and that it had not justified the application of ECtHR's case law to the decision. When adjudicating again upon the question, the appeals court found that the appeal against the detention order had lost its object, as a new detention order had been issued in the meantime extending his detention for another two months. The applicant appealed against this new detention order, and was again successful as the appeals court found that he would risk treatment contrary to Article 3 if he were deported to Greece. At the expiration of the two months, the applicant was released before the Cassation Court could decide on the appeal lodged by the state. Some months afterwards, in December 2010, the applicant introduced a second asylum application and in 2011 he was granted subsidiary protection.

Before the ECtHR, the applicant complained that his continued detention after the first favourable appeals decision and the extension of his detention for an additional two months had been unlawful and contrary to Article 5(1) of the Convention. However, the Court found that it was legitimate to keep the applicant in detention awaiting the decision of the Cassation Court and to extend detention in view of a possible removal. The applicant also invoked Article 5(4) ECHR as he had not had an effective remedy for the review of his detention at his disposal. In this case, the Court found a violation of the Convention, as the applicant never got a final decision concerning the legality of his detention and that hence he did not have a Court review the legality of his detention and to eventually order his release within a brief delay.

Read the full text of the judgment on the website of the European Court of Human Rights.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Effective remedy (right to)