AFFAIRE N.M. v. BELGIUM, European Court of Human Rights
The European Court of Human Rights issued a decision in the case of N.M. v. Belgium on 18 April 2023, which pertained to a period of immigration detention exceeding two and a half years in combination with national security concerns.
The detained individual, an Algerian national who was residing unlawfully in Belgium, was found guilty of being a member of a terrorist organization and was deemed to pose a danger to national security. As a result, he was ordered to be detained and deported. Despite the prolonged period of confinement, including some time in partial isolation, the ECtHR concluded that Articles 3 and 5 of the European Convention on Human Rights (ECHR) were not breached.
The court determined that the applicant was detained pursuant to the second branch of Article 5(1)(f) of the ECHR. This pertains to the detention of a person against whom action is being taken with the goal of deportation, even if the individual is seeking asylum at that time. The ECtHR issued an interim injunction in the applicant’s case, prohibiting his expulsion. The Belgian authorities could not be criticized for not implementing alternatives to detention, as the deprivation of liberty under Article 5(1)(f) of the ECHR is not required to be necessary, unless the concerned individual is vulnerable. The court acknowledged that the applicant’s detention was especially protracted, but also noted that the Belgian authorities acted with due diligence. Asylum and return procedures were complicated and necessitated the gathering of information on the country of origin and national security matters. Such significant issues necessitate scrutiny, which apparently, according to the ECtHR, necessitates 31 months to complete.
This case reaffirms that detaining third-country nationals solely for national security reasons is prohibited under Article 5 of the ECHR, but they may be deprived of their freedom for immigration purposes intertwined with national security protection. The ECtHR appears to be more inclined to accept extended detention in such circumstances as being in accordance with the ECHR than in other immigration detention cases.
