ECtHR - Čonka v Belgium, Application no. 51564/99, 5 February 2002

Facts:

The applicants are a Slovakian family of Roma origin, consisting of two parents and two children. They claimed political asylum in Belgium in 1998, on the basis of being assaulted and threatened by skinheads, without any police protection.

The Belgian authorities rejected their claims as inadmissible due to lack of evidence, refused them permission to enter, and ordered them to leave the territory within 5 days.

They lodged an urgent appeal, which was dismissed and another deportation order was made. Their applications for legal aid were dismissed as they had not included the correct documents. Their applications for stay of execution and judicial review with the Conseil d’Etat were struck out for non-payment of the court fees.

Upon being summoned to Ghent police station, along with other Slovakian Roma nationals, by notice informing them that their attendance was required to enable their asylum files to be completed, the applicants were served with a fresh order to leave the territory, a decision to remove them to Slovakia and a detention order. The applicants were then taken to a closed transit centre and were deported 5 days later along with a number of other Slovakian families.

The applications alleged a violation of Article 5(1) due to their arrest by Ghent police claiming they had been deceived about the purpose of attending. They also alleged a violation of Article 5(2) due to insufficient information being given to them about the reasons of their arrest and complained of a violation of Article 5(4).

In addition they complained of being collectively expelled contrary to Article 4, Protocol 4 and that there was no remedy available to complain of this contrary to Article 13.

Decision & reasoning:

The Court noted that the applicants had been arrested for the purpose of their deportation. It considered that the wording of the notice summoning the applicants was not inadvertent, but chosen deliberately to secure the compliance of the largest possible number of recipients. A conscious decision by the authorities to facilitate the expulsion of aliens by misleading them in order to make it easier to deprive them of their liberty was not compatible with Article 5. Given that the applicants were not given information on available remedies in their language, there was only one interpreter available for many people and no form of legal assistance at the detention centre, there was no realistic possibility of accessing a remedy. Accordingly there was a violation of Article 5(1).

With regard to their Article 5(2), there was no violation, as they were served with a decision ordering their arrest which informed them of an appeal right and a Slovak speaking interpreter was present at the time. This was in spite of the fact that these measures were not sufficient to allow the applicants to lodge an appeal.

Turning to Article 5(4), the available remedy of an appeal to the committals division of the criminal court was made difficult to access as information was in small characters in a language the applicants did not understand, with only one interpreter available. In addition, the applicant’s lawyer was informed of his clients’ situation at a stage that was too late to lodge an appeal prior to their removal. As such there was a violation of Article 5(4).

Turning to the allegation of collective expulsion, the Court cited its previous case law in Andric v. Sweden, that held that this consisted of any measure compelling aliens as a group to leave a country, except where this was taken on the basis of a reasonable and objective examination of the particular case of each individual. In this case the detention and deportation orders at issue made no reference to their application for asylum or the previous decisions against them. In view of the large number of Slovakians who were also deported with the applicants, the government failed to eliminate doubt that the expulsion may have been collective. This finding was reinforced by numerous factors: that the political authorities had announced that there would be operations of this kind and given instructions to that effect, for the purpose of discouraging other Slovakian asylum applications after a large increase; that all aliens involved were required to attend the police station at the same time; the orders served on them were identically worded; it was difficult for them to contact a lawyer; and the asylum procedure had not been completed. The lack of guarantees demonstrating that the personal circumstances of each person concerned had genuinely and individually been taken into account meant that there was a violation of Article 4 Protocol 4.

The Court found that the applicants had no remedy available to them to complain of their alleged collective expulsion in violation of Article 13. Applications for stay of execution under the normal procedure or the urgent procedure had no automatic suspensive effect. This led to a risk that stays of execution may wrongly be refused leading to an applicant being subjected to ill-treatment in the destination country, or collective expulsion, which made such remedy ineffective for the purposes of Article 13. 

Outcome:

The Court unanimously found violations of Article 5(1), 5(2) and 5(4). The majority found a violation of Article 4 Protocol 2 and Article 13 in conjunction with their collective expulsion. 

Subsequent proceedings:

In December 2011, the CoE Committee of Ministers adopted a final resolution (CM/ResDH(2011)191) wherein it found that Belgium had adopted adequate execution measures. Notably the Court was satisfied with the creation of a Specific Administrative court, the Aliens Disputes Board. This has full judicial competence for asylum and subsidiary protection issues; any complaints brought before this court against decisions of the administrative body competent to decide on asylum requests have a suspensive effect; and the Court also has the power to suspend or set aside other kinds of decision concerning the stay of third country nationals. Decisions by this Court have to be given within 72 hours, and no distinction is made between aliens already present on the territory and those at the frontier.

Furthermore, the Committee of Ministers also considered favourably the dissemination to each inmate of an information booklet providing information on possible legal actions and the right to receive legal assistance.

Observations/comments:

This was the first case in which the European Court of Human Rights found that there had been a collective expulsion of aliens, in violation of Article 4 Protocol no. 4 ECHR.

Judge Valaers partly dissented, disagreeing with the majority finding of a violation of Article 4 of Protocol No. 4. He considered that after their arrest, a final individual examination was carried out by the police, by the fact that they contacted the Aliens Office to find out whether any of those arrested had leave to remain in Belgium. The applicant’s individual circumstances had already been considered on two previous occasions which provided sufficient justification for the expulsions. He also disagreed with the finding that there was a violation of Article 13, finding that the applicants had available to them an application for stay of execution under the extremely urgent procedure, which had reasonable prospects of success and could be implemented extremely quickly. Although this did not have automatic suspensive effect, it could have the same effect in practice. The margin of discretion that Member States had in conforming to their Article 13 obligations was decisive and was met in this case, according to him as this procedure was accessible and effective.

Judges Jungwiert and Kuris also dissented in relation to Article 13 and Article 4 Protocol 4. They commented that although around seventy Slovakian nationals were repatriated together, this did not imply a collective expulsion since the personal circumstances of each expelled alien were examined on three occasions. States were not prevented from grouping together people to be expelled to the same country for reasons of economy or efficiency. They dissented for substantially the same reasons as Judge Valaers with regard to Article 13.  

Other sources:

Counseil d’Etat practice direction on the procedure to be followed by duty staff at weekends 

Reply of Ministry of the Interior to a parliamentary question put on 23 December 1999

“Note providing general guidance on overall policy in immigration matters” approved by the Cabinet on 1 October 1999

Report on Slovakia of 15 June 1998 of the European Commission against Racism and Intolerance

Report drawn up after a joint mission to Slovakia in February 1999 of the Aliens Office and the Commissioner-General's Office for Refugees and Stateless Persons on discrimination against Roma