June 09, 2022
By Nona De Dier
In Sabani v. Belgium, the Court assessed whether an intrusion into the home of an undocumented immigrant with the aim of removing her from the national territory constitutes a violation of Article 8 of the European Convention on Human Rights (ECHR). In Sabani’s case, the lack of an appropriate legal basis means that the intrusion into the applicant’s private life cannot be justified. In addition, the Court ruled that the use of handcuffs during the at-home arrest, in the presence of the applicant’s minor daughter, constituted an infringement as well.
Facts and legal reasoning before the Court
In 2009, the Serbian Aferdita Sabani travelled to Europe with her daughter to join her husband in Belgium. She submitted multiple requests to regularise her stay, for medical and humanitarian reasons, which were all rejected. On 19 March 2015, the police were ordered to arrest Sabani after she had ignored multiple expulsion orders. They arrived at her home, searched her, handcuffed her in the presence of her minor daughter, and brought her to a closed detention centre in Bruges.
Afterwards, she submitted multiple requests to avoid her expulsion, but they were all reviewed negatively. During the national judicial procedure, Sabani invoked a violation of Article 8 ECHR because of the police entering her home without consent and because of her being handcuffed during the arrest. Regarding the former argument, the Brussels Court of Appeal found that there was no infringement since the police did not perform a home search, but merely checked whether she was home. The appellate court also ruled that the use of handcuffs was justified given the existing flight risk. Sabani submitted an appeal against this judgment to the Court of Cassation. However, in a decision of 10 June 2015, this request was rejected because the appeal had become unfounded due to the applicant’s multiple more recent requests. Eventually, on the 30th of June, Sabani was repatriated.
Sabani submitted an appeal before the European Court of Human Rights (ECtHR, the Court) and alleged a violation of Article 8 ECHR, i.e., the right to respect for private and family life. Firstly, the applicant argued that the police forces surprised her at her place of residence to catch her in flagrante delicto (the delict being her stay on the territory despite the expulsion order) and arrest her. She contended this is a common contra legem practice, which is used to facilitate deportations. Belgian law does, indeed, not allow the police to enter people’s homes without their consent. However, despite this requirement of consent, the police report does not state anywhere that a bell was rung or consent to enter was given. Therefore, the applicant argued that one can reasonably assume that she did not consent to the police entering her home. The Belgian Government tried to rebut this argument by stating that the arrest did not happen inside but in front of her home. Secondly, the applicant argued that the Court of Appeal’s reasoning with regard to the use of handcuffs should not be followed because she had never in the past shown any resistance or ever tried to elude the police. On this matter, the Belgian Government stated that the use of handcuffs was justified because the applicant had submitted multiple requests in order to obstruct her expulsion and because she had shown little cooperation with the police forces. Lastly, the applicant invoked a violation of Article 5§4, arguing that her appeal against her detention had not been subjected to effective judicial review within a certain time frame because the Court of Cassation found her complaint to be unfounded.
The Court’s judgment
Firstly, the Court had to assess if there has been an interference with the private life of the applicant. To decide on this aspect of the case, it must first examine whether or not the police forces really entered the home of the applicant without her consent. The Court stated that the applicant has always been consistent in her declarations. In contrast, the Belgian Government’s reasoning was contradictory: the applicant’s alleged resistance is not compatible with the claim that she had voluntarily left her house at request of the police. The Court thus found that the applicant had submitted the necessary evidence of the police entering her home without her consent. Consequently, the interference with the applicant’s private life had been established.
Subsequently, the Court addressed the question of the legality of the interference in light of §2 of Article 8. It stated that the Belgian Government did not invoke any legal basis for this interference but solely relied on the ex post facto control exercised by the Brussels Court of Appeal. The Court underlined that entering a person’s home without prior judicial authorisation requires the utmost vigilance. The Court noted that the national court of appeal did, in fact, refer to a certain legal provision, namely part of the Police Service Act. That provision authorises the police to apprehend foreigners who do not possess appropriate means of identification. It also provides that in order to facilitate this, the police may take the necessary measures prescribed by law or a competent authority. However, the Court stated that this provision does not suffice as a legal basis for the interference at stake because it does not explicitly provide the possibility for the police to enter a foreign person’s home. The requirement of a clear and specific legal basis was thus not met. Therefore, the Court ruled that the Belgian Government had failed to provide an adequate legal framework and that the interference cannot be considered ‘prescribed by law’. Consequently, there had been a violation of Article 8.
As to the use of handcuffs, the Court stated in a rather short three paragraphs that the Belgian Government did not establish the necessity of the measure in these particular circumstances, namely at the applicant’s home, in the presence of her daughter. As a result, Article 8 has also been violated regarding the applicant’s second claim.
Lastly, concerning Article 5§4 of the Convention, the ECtHR did not find a violation. It ruled that, despite the fact that the Court of Cassation had declared her appeal against her detention order to be unfounded, the domestic courts did, in fact, rule on the merits of her detention in other decisions – a fact which the applicant did not dispute. Furthermore, the applicant had filed a second request for asylum after having filed an appeal against her detention with the Court of Cassation, and when that request for asylum was refused again, another detention order was issued against her. This second order replaced the first one, and consequently did, in fact, make her appeal against the first one unfounded. Her filing of multiple appeals has also impacted the domestic procedure’s speed, which rendered her complaint against the length of the procedure unconvincing. Moreover, the applicant had never raised this complaint in the proceedings before the domestic courts. The Court consequently found that it could not agree with the applicant’s argument that she was denied effective judicial review within a reasonable period of time, and finds this complaint to be manifestly ill-founded.
Entering someone’s home without their consent in the context of an expulsion procedure
The Court ruled that the conditions for a legitimate interference with the applicant’s private and family life were not fulfilled due to the lack of a sufficiently clear and specific legal basis. This means that the Court did not assess the other Article 8§2 requirements: a legitimate aim and necessity in a democratic society. The question thus arises: would the Court also have found an infringement of Article 8 if there had been an adequate legal framework?
In expulsion cases, immigration control policy has been accepted as a legitimate aim. The Court previously stated that it considered these types of measures to fall within the scope of the economic well-being of a State, which is one of the justification grounds mentioned in Article 8 (Berrehab v. The Netherlands, M.A. v. Denmark). As a result, one can reasonably assume that the Court would have ruled that the measure in Sabani v. Belgium had a legitimate aim.
With regard to the necessity in a democratic society, it must be noted that the Court has previously emphasised that ‘necessary’ does not mean ‘desirable’ or ‘reasonable’, but that there must be a pressing social need for the measure in question (Dudgeon v. United Kingdom). States are granted a certain margin of appreciation to decide on this. However, the exceptions in Article 8§2 are to be interpreted narrowly; the pressing social need for the interference in question must be convincingly established (C. Virra & Cont Pad S.R.L. v. Romania).
In cases concerning the proportionality of home searches, the Court has often expressed the importance of adequate and sufficient legal safeguards against abuse and arbitrariness (e.g. Vinci Construction and GTM Génie Civil et Services v. France). Some important criteria include the circumstances in which the order granting permission to enter the home is issued, its content and its scope, as well as the measures taken in order to confine the impact of the intrusion to reasonable bounds (Avanesyan v. Russia). Another important safeguard is a prior authorisation by a judge. However, this does not, in itself, constitute a sufficient protection: judicial scrutiny must also be carried out properly. In Posevini v. Bulgaria, the Court even stated that the absence of the possibility of an ex post judicial assessment did not establish a violation, precisely because of the strong prior control of the search.
Taking this into account, it is likely that the Court would not regard the intrusion in Sabani v. Belgium as proportionate. Given that there is no legal basis for the search in Sabani’s case, there surely exist no other legal safeguards against it, though those safeguards have been required by the Court in previous case law. In fact, the national judges did not even acknowledge the infringement of her home as a ‘search’, instead qualifying it as a mere ‘check’. Moreover, the ex post judicial review was not exercised properly either: the domestic court ruled that the interference had been justified solely because it could potentially fall within the scope the Belgian Police Service Act, omitting to verify any further whether the intrusion actually complied with this Act. Therefore, it is likely that the Court would not consider the police’s intrusion into Sabani’s home in order to facilitate her expulsion as meeting the proportionality test, even if there had been a legal basis for it.
Ironically, the fact that the Court found a violation in Sabani v. Belgium led to a legislative initiative to enable the systemic intrusion into the homes of people who have received a deportation order. In 2018, the Belgian Federal Government had under the impulse of the former nationalist Secretary of State for Immigration, Theo Francken, proposed to enact legislation on this subject. In the end, the law was never adopted because it received criticism from almost every party on the political spectrum (except for the far right) as well as practitioners – though not from the majority of Flemish citizens. Considering the recent political debate about a new proposal, the fact that the Court found a violation due to the lack of a legal provision might be used as an argument to precisely legalise what is called a ‘visitation right’. Nevertheless, the judgment in Sabani, which clearly condemns the unlawful interference with the applicant’s private life, is to be welcomed.
The use of handcuffs
In a short three-paragraph reasoning, the Court ruled that the handcuffing of the applicant in her home, in the presence of her daughter, constitutes a violation of Article 8 as well. With respect to this rather brief assessment, a question arises. In cases concerning the unnecessary use of handcuffs, it is usually (though not exclusively) Article 3, with a much higher threshold, that is invoked (e.g. Kucheruk v. Ukraine and Ciorap v. Moldova were examined under Article 3, as opposed to, for example, Raninen v. Finland). It could certainly be argued that a thorough assessment of the Court’s case law reveals that an examination of the present case under Article 3 may not be as outlandish as it at first might appear to be.
In the context of law enforcement, the use of handcuffs does not necessarily violate the Convention, if the measure was imposed in connection with a lawful arrest and the use of force does not exceed what is necessary in those specific circumstances – a condition which the ECtHR deems of great relevance in its assessments (Shlykov and Others v. Russia, Pranjić-M-Lukić v. Bosnia and Herzegovina). However, in certain circumstances, it may reach the threshold of degrading treatment (Hénaf v. France). In Bouyid v. Belgium – a case concerning two youths, one of them a minor, being slapped in the face by a police officer during their detention – the Courtstated that ‘any recourse to physical force which has not been made strictly necessary by the person’s conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention.’ An important factor is whether there are reasons to believe that the person in question would resist arrest or abscond, or try to cause injury or damage (Svinarenko and Slyadnev v. Russia). The answer to the question if it was necessary to handcuff Sabani, a then fifty-seven-year-old woman (who was alleged to be uncooperative but of whom was never claimed that she had shown any physical resistance towards police forces), is almost so evident that it renders the question rhetoric. Moreover, even if this woman had shown any physical resistance, would she have really been able to escape, or cause any injury to the team – ‘équipe’, as it is stated in the judgment – of police officers?
An aggravating factor in this case is the fact that the arrest took place in the presence of the applicant’s daughter. The Court has previously stressed that the presence of family members, in particular children, at the scene of an arrest is a factor to take into consideration when planning and executing an operation (Gustanovi v. Bulgaria). For example, the Court found a violation of Article 3 in A. v. Russia, where a nine-year-old child witnessed the violent arrest of her father, who put up no resistance. Given the unnecessary use of physical force, combined with the aggravating circumstance of the child’s presence, one could argue that the Court could at least have examined whether this case had exceeded the threshold of Article 3. Nonetheless, it must be noted that the Court’s finding of a clear violation of Article 8 provided for definite protection against excessive interference with the applicant’s bodily autonomy, which is to be praised.
While the finding of a violation in Sabani v. Belgium is certainly to be applauded for the concrete condemnation of illegal visits of foreigners’ homes and of the unnecessary use of handcuffs, the lack of a legal basis in this case prevents the Court from having to assess the legitimacy and proportionality of the intrusion into the home of a person subjected to an expulsion procedure. The judgement stirs up an ever-ongoing debate and might give rise to new political discussions on a legal basis for ‘visitation right’-like interferences. In addition, it must be noted that the use of handcuffs in this case could be more considered more than a violation of Article 8 and could have been examined under Article 3. Even if certain criticism is justified, the judgment is nevertheless – in general – to be welcomed.