(6 February 2012) -- The European Court of Human Rights held unanimously that detaining a migrant while s/he awaits removal can only be justified if concrete measures are taken to organise the removal. The Court based its judgement in this case, M.S. v. Belgium (application no. 50012/08) on Articles 3 (Prohibition of torture) and 5 (Right to Liberty and Security) of the European Convention on Human Rights.

The case concerned an Iraqi national who had been sentenced to imprisonment in Belgium on criminal and terrorist activities. He served the whole of his sentence in a Belgian prison. On the day of his release he was transferred to an immigration detention centre in order to be removed from the country. 

His applications for asylum were denied. The responsible Belgian body, however, drew the authorities’ attention to the fact that if Mr M.S. were to be returned to Iraq, he risked being subjected to punishment or treatment incompatible with Article 3 of the Convention. When the Belgian authorities failed to find a third country that would accept Mr. M.S., they removed him to Iraq where, according to the Court’s findings, he was immediately arrested upon leaving the aircraft and placed in detention. Later he was released on bail and several restrictive conditions.

The Court found Belgium guilty of having violated Mr M.S.’s rights under Article 3 of the Convention. The judges reiterated that Article 3 of the Convention prohibited in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct, and even in the most difficult circumstances such as the fight against terrorism. It was not possible to weigh the risk of ill-treatment – even where such treatment was inflicted by another State – against the reasons put forward for the expulsion. In that connection, the conduct of the person concerned, however undesirable or dangerous, could not be taken into account.

In the Court’s view Belgium should have, therefore, taken steps to obtain diplomatic assurances from the Iraqi authorities that Mr M.S. would not be subjected to treatment contrary to Article 3. Accordingly, there had been a violation of Article 3.

With regard to detention, the Court noted that for a long time removal was not possible because Belgium had not found any other country that would accept Mr M.S. His detention was rather based on reasons of security. The Court found that this was not sufficient for justifying detention. Accordingly, there had been a violation of Article 5 (1) of the Convention.