Resolution CM/ResDH(2011)191[1]
Execution of the judgment of the European Court of Human Rights
Čonka against Belgium
(Application No. 51564/99, judgment of 5 February 2002, final on 5 May 2002)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violations of the Convention found by the Court in this case concern the right to freedom of the applicants, Slovakian nationals of Roma origin and asylum seekers, due to the means employed to secure their arrest in 1999 and the inaccessibility of the remedy available for contesting their deprivation of liberty (violation of Article 5, paragraphs 1 and 4), the prohibition of collective expulsions owing to the absence of adequate guarantees to ensure proper consideration of each applicant’s individual situation (violation of Article 4, Protocol No. 4) and the absence of a remedy, fulfilling the requirements of Article 13, whereby they might air their complaints under Article 4 of Protocol No. 4 (violation of Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Recalling Interim Resolution ResDH(2006)25, adopted on 5 April 2006 in this case;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Stressing that on 20 June 2007, on the basis of the measures reported by the Belgian authorities (see details in Appendix), the Committee of Ministers decided to end its supervision of execution in this case;
Nevertheless recalling, with regard to the general measures under Article 13, that the Court has meanwhile concluded in its Grand Chamber judgment in the case of M.S.S. against Belgium and Greece (Application No. 30696/09, final judgment on 21/01/2011) that Belgium lacks an effective remedy for contesting the decision to remove a foreigner, and that the Committee is keeping this question under review in connection with the execution of the judgment in this case;
DECLARES, considering its aforementioned decision of 20 June 2007, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2011)191
Information on the measures to comply with the judgment in the case of
Čonka against Belgium
Introductory case summary
The case concerns the circumstances surrounding the expulsion from Belgium of the applicants, Slovakian nationals of Roma origin and asylum seekers.
Summoned to the police station on 1 October 1999 on the pretext of completing their applications for asylum, the applicants were in fact placed under arrest, taken to a closed transit centre then deported to Slovakia on 5 October 1999. The Court found it incompatible with Article 5 of the Convention that, in the context of a planned expulsion operation and for the sake of facility or effectiveness, the administration should consciously decide to mislead even persons in an unlawful situation about the purpose of a summons so as to deprive them more easily of their liberty (paragraph 42 of the judgment) (violation of Article 5, paragraph 1).
Furthermore, a number of factors prevented the applicants from effectively putting their case to the committals division, the only judicial authority competent to determine the lawfulness of their detention (violation of Article 5, paragraph 4). In particular, the information on the remedies available was set out in small type and in a language not understood by the applicants, in the document handed to them on arrival at the police station. Besides, only one interpreter was present in the police station for some tens of families and there was none at the closed centre, which made any contact with a lawyer difficult; no other form of legal assistance was provided by the authorities, whether at the police station or at the transit centre; finally, a decisive factor, the applicants’ lawyer was informed at such a time that any application to the committals division was rendered pointless (paragraphs 44 and 45 of the judgment).
The fact that the applicants were expelled at the same time as some 70 other asylum seekers, without proper consideration of the individual situation of each of them at any stage from the summoning of the persons concerned to the police station until their expulsion, gave rise to a violation of Article 4 of Protocol No. 4 (paragraph 63 of the judgment).
The applicants lodged a petition to set aside, with an application under ordinary procedure for stay of execution, against the decision to refuse them permission to stay. The Court observed that this appeal was among those available to the applicants against the decision, according to the document containing it. Given that, according to the decision, those concerned had only 5 days to leave the national territory, that the application under ordinary procedure for stay of execution was not in itself suspensive, and that the Conseil d’Etat had 45 days to rule on such an application, the mere mention of it among the available remedies was, to say the least, liable to cause confusion for the applicants (paragraph 80). As to the application for stay of execution under extremely urgent procedure, the Court observed in particular that the applicants had no guarantee that the Conseil d’Etat would rule, or even be in session, before their expulsion, or that the administration would observe a reasonable minimum period of grace, and all these factors made the handling of the application too uncertain to enable the requirements of Article 13 to be satisfied (paragraph 83) (violation of Article 13 of the Convention in conjunction with Article 4 of Protocol No. 4).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs & expenses
Total
-
EUR 10,000
EUR 9,000
EUR 19,000
Paid on 27/08/2002 + interest
b) Individual measures
The applicants were expelled on 5 October 1999. Their appeal against the decision leading to their expulsion was struck out of the list of the Conseil d’Etat for failure on the applicants’ part to pay the corresponding fees (after refusal of their request for legal aid). In its judgment, the Court awarded them just satisfaction in respect of non-pecuniary damage. At no time did the applicants make any other request before the Committee of Ministers. In these circumstances, no other individual measure was considered necessary.
II.General measures
Violation of Article 5 paragraph 1 and Article 4 of Protocol No. 4 (circumstances of the placement in detention and of the expulsion)
The Court’s judgment was published on the website of the Ministry of Justice and received extensive press coverage. The Belgian authorities consider that having regard to the direct effect given to the judgments of the European Court in Belgium, this suffices to avert any similar violations.
Violation of Article 5 paragraph 4 (access to remedies against the measure of detention)
The Royal Decree of 2 August 2002 provides that upon arrival in a detention centre situated on Belgian territory run by the Aliens Office, each inmate is to receive an information booklet explaining inter alia the possibilities for appeal against detention, for lodging a complaint about the circumstances of detention, and for requesting legal aid. The Centre’s Director is to tell inmates the reasons for their detention, the statutory and regulative provisions applying to them, and the possible remedies against that decision. He is also to ensure that inmates are able to request the legal aid provided by law (Article 62). Inmates are entitled to make daily telephone calls free of charge to their lawyer between 8 am and 10 pm, and lawyers may make contact by telephone with their client at any time; telephone contact between an inmate and his/her lawyer cannot be prohibited (Article 63). According to the Belgian authorities, inmates of the centre can also send documents to their lawyer by fax, if they make an explicit request to do so. Finally, the lawyers and interpreters assisting them have daily access to the centre at least from 8 am to 10 pm, if they have a client there, provided that they can certify their status with a valid professional card. The lawyer’s visit cannot be forbidden (Article 64).
The Royal Decree of 8 June 2009 establishes the guarantees applicable to the closed centres located at the border.
Violation of Article 13 in conjunction with Article 4 of Protocol No. 4 (access to remedies against an expulsion measure)
First, on 19 July 2002 the Minister of the Interior adopted a circular notified to the Director General of the Aliens Office to the effect that “in the event of a request being lodged with the Conseil d’Etat for a stay of execution under extremely urgent procedure of an order to leave the territory issued in respect of an unsuccessful asylum seeker, the order shall not be executed until such time as the Conseil d’Etat has ruled on this request for a stay of execution under extremely urgent procedure”.
Next, the law of 15 September 2006, which came into force on 1 June 2007, carried out a sweeping reorganisation of proceedings relating to aliens. It reformed the Conseil d’Etat, which no longer operates except as an administrative review body on points of law, and set up a new administrative court, the Conseil du Contentieux des Etrangers (Aliens’ Disputes Board, hereinafter referred to as the CCE).
The CCE’s powers vary depending on whether it has before it an appeal against a decision by the office of the Commissioner-General for Refugees and Stateless Persons (hereinafter referred to as the CGRA) or other individual decisions.
Appeals against decisions of the CGRA on asylum and subsidiary protection now have the effect ipso jure of staying execution (Article 39/70 of the law of 15 December 1980 on aliens’ entry to the territory, residence, domiciliation and removal, as amended by the law of 2006 mentioned above). The CCE acts a court with jurisdiction over all aspects of litigation: it may withdraw and grant refugee status or the benefit of subsidiary protection, confirm the decision to refuse it, or set aside the decision with referral to the CGRA (Article 39/2, paragraph 1, of the law).
As to other proceedings concerning aliens (in respect of entry, residence, domiciliation and removal), the CCE makes rulings to set aside and, where appropriate, to stay execution. An application to set aside does not automatically stay execution but may be accompanied by a request for stay of execution under “extremely urgent procedure” which suspends the execution of the expulsion measure until the Council adjudicates, i.e. for 72 hours maximum. However, in the judgment in the case of M.S.S. against Belgium and Greece (21 October 2011), the Court concluded that Belgium had no effective remedy to challenging the decision to expel an alien seeking asylum.
In particular, it held that the application for stay of execution that could be lodged “under extremely urgent procedure” with the Aliens Appeals Board did not meet the criteria established in its case-law (paragraph 390 of the M.S.S. against Belgium and Greece judgment). The Committee of Ministers is keeping this question under review in connection with the execution of this judgment.
III.Conclusions of the respondent state
The government considers that no individual measure is required in this particular case apart from the payment of just satisfaction, that subject to the aspects relating to Article 13 whose examination is proceeding in connection with the case of M.S.S. against Belgium and Greece, the general measures will prevent similar violations and that Belgium has thus complied with its obligations under Article 46, paragraph 1, of the Convention in this case.
[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies
Full & Egal Universal Law Academy