Čonka v. Belgium

Information Note on the Court’s case-law No. 39

February 2002

Čonka v. Belgium - 51564/99

Judgment 5.2.2002 [Section III]

Article 5

Article 5-1

Lawful arrest or detention

Arrest of applicants with a view to their expulsion after they had been summoned to complete their asylum requests: violation

Article 5-2

Information on reasons for arrest

Arrest of applicants with a view to their expulsion after being summoned to complete their asylum requests: no violation

Article 5-4

Review of lawfulness of detention

Applicants unable to make use of available remedies: violation

Article 4 of Protocol No. 4

Prohibition of collective expulsion of aliens

Failure to examine the specific situation of each individual prior to expulsion: violation

Facts: The applicants, who were Slovakian nationals of Romany origin, said that they had fled from Slovakia where they had been subjected to racist assaults with the police refusing to intervene. In November 1998 they arrived in Belgium, where they requested political asylum. On 3 March 1999 their applications for asylum were declared inadmissible. The decisions refusing them permission to remain were accompanied by other decisions refusing them permission to enter the territory and an order to leave the territory within five days. On 5 March 1999 the applicants lodged an appeal against those decisions with the Commissioner-General for Refugees and Stateless Persons under the urgent-applications procedure. On 18 June 1999 the Commissioner-General’s Office upheld the decision refusing the applicants permission to remain and stated that time had begun to run again for the purposes of the five-day time-limit. On 28 October 1999 the applicants’ applications for judicial review and a stay of execution of the decision of 18 June 1999 were struck out of the Conseil d’État’s list. At the end of September 1999 the Ghent police sent a notice to a large number of Slovakian Roma, including the four applicants, requiring them to attend the police station on 1 October 1999. The notice stated that their attendance was required to enable the files concerning their applications for asylum to be completed. At the police station the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and for their detention for that purpose. The document, which was in identical terms for everyone concerned, informed the recipients that they could apply to the Conseil d’État for judicial review of the deportation order and for a stay of execution and to the indictment division of the criminal court against the order for their detention. A Slovakian-speaking interpreter was present at the police station. A few hours later the applicants and other Romany families were taken to a closed transit centre. At 10.30 a.m. on 1 October 1999 the applicants’ counsel was informed that his clients were in custody. He contacted the Aliens Office, requesting that no action be taken to deport them, as they had to take care of a member of their family who was in hospital. However, he did not appeal against the deportation or detention orders made in September 1999. On 5 October 1999 the families were taken to a military airport and put on an aircraft bound for Slovakia.

Law: Article 5 § 1 – The applicants had been arrested so that they could be deported from Belgium. Article 5 § 1 (f) was thus applicable in the case before the Court. All that was required under that sub-paragraph was that action was being taken with a view to deportation. Where the “lawfulness” of detention was in issue, including the question whether “a procedure prescribed by law” had been followed, the Convention referred essentially to the obligation to conform to the substantive and procedural rules of national law, but it required in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness. Although the Court by no means excluded its being legitimate for the police to use stratagems in order, for instance, to counter criminal activities more effectively, acts whereby the authorities sought to gain the trust of asylum seekers with a view to arresting and subsequently deporting them, as in the instant case, may be found to contravene the general principles stated or implicit in the Convention. While the wording of the notice was unfortunate, that had not been the result of inadvertence; on the contrary, it had been chosen deliberately in order to secure the compliance of the largest possible number of recipients. The Court reiterated that the list of exceptions to the right to liberty secured in Article 5 § 1 was an exhaustive one and only a narrow interpretation of those exceptions was consistent with the aim of that provision. That requirement had also to be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients were lawfully present in the country or not. Even as regards overstayers, a conscious decision by the authorities to facilitate or improve the effectiveness of a planned operation for the expulsion of aliens by misleading them about the purpose of a notice so as to make it easier to deprive them of their liberty was not compatible with Article 5. That factor had a bearing on the Government’s preliminary objection, which had been joined to the merits. The applicants’ lawyer had only been informed of the events in issue and of his clients’ situation at 10.30 p.m. on Friday 1 October 1999, such that any appeal to the committals division would have been pointless because, had he lodged an appeal with the division on 4 October, the case could not have been heard until 6 October, a day after the applicants’ expulsion on 5 October. However, the accessibility of a remedy within the meaning of Article 35 § 1 of the Convention implied that the circumstances voluntarily created by the authorities had to be such as to afford applicants a realistic possibility of using the remedy. That had not happened in the case before the Court and the preliminary objection had therefore to be dismissed.

Conclusion: violation (unanimously).

Article 5 § 2 – on their arrival at the police station the applicants had been served with the decision ordering their arrest. The document handed to them for that purpose had stated that their arrest had been ordered pursuant to the Aliens Act to prevent them from eluding deportation. On the applicants’ arrest at the police station a Slovakian-speaking interpreter had been present for the purposes of informing the aliens of the content of the verbal and written communications which they had received, in particular, the document ordering their arrest. Even though those measures by themselves had not in practice been sufficient to allow the applicants to lodge an appeal with the committals division, the information thus furnished to them nonetheless satisfied the requirements of Article 5 § 2 of the Convention.

Conclusion: no violation (unanimously).

Article 5 § 4 – The Government’s submissions were the same as those on which they had relied in support of their preliminary objection to the complaints under Articles 5 § 1, § 2 and  § 4 of the Convention. Accordingly, the Court referred to its conclusion that it had been impossible for the applicants to make any meaningful appeal to the committals division of the criminal court. Consequently, it was unnecessary to decide whether the scope of the jurisdiction of the committals division satisfied the requirements of Article 5 § 4.

Conclusion: violation (unanimously).

Article 4 of Protocol No. 4 – collective expulsion, within the meaning of that Article, was to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure was taken on the basis of a reasonable and objective examination of the particular case of each individual alien in the group. That did not however mean that where the latter condition was satisfied, the background to the execution of the expulsion orders played no further role in determining whether there had been compliance with Article 4 of Protocol No. 4. In the case before the Court, the applications for asylum made by the applicants had been rejected in decisions of March and June 1999, on the basis of the applicants’ personal circumstances. The detention and deportation orders had been issued to enforce an order to leave the territory of September 1999; that order had been made solely on the basis of the Aliens Act, and the only reference to the applicants’ personal circumstances had been to the fact that their stay in Belgium had exceeded three months. The document made no reference to their application for asylum or to the decisions of March and June 1999. While those decisions had also been accompanied by an order to leave the territory, that order did not permit the applicants’ arrest. The applicants’ arrest had therefore been ordered for the first time in September 1999 on a legal basis unrelated to their requests for asylum, but nonetheless sufficient to entail the implementation of the impugned measures. In the light of the foregoing and in view of the large number of persons of the same origin who had suffered the same fate as the applicants, the procedure followed did not enable the Court to eliminate all doubt that the expulsion might have been collective. That doubt had been reinforced by a series of factors, notably: prior to the applicants’ deportation, the political authorities concerned had announced that there would be operations of that kind and given instructions to the relevant authority for their implementation; all the aliens concerned had been required to attend the police station at the same time; the orders served on them requiring them to leave the territory and for their arrest had been couched in identical terms; it had been very difficult for the aliens to contact a lawyer; and, lastly, the asylum procedure had not been completed. Ultimately, at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion had the procedure afforded sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account.

Conclusion: violation (four votes to three).

Article 13 – the notion of an effective remedy under Article 13 required that the remedy could prevent the execution of measures that were contrary to the Convention and whose effects were potentially irreversible. Consequently, it was inconsistent with Article 13 for such measures to be executed before the national authorities had examined whether they were compatible with the Convention, although Contracting States were afforded some discretion as to the manner in which they conformed to their obligations under that provision. In the instant case, the Conseil d’État had been called upon to examine the merits of the applicants’ complaints in their application for judicial review. Having regard to the time which the examination of the case would take and the fact that they were under threat of expulsion, the applicants had also made an application for a stay of execution under the ordinary procedure, although the Government said that they should have used the extremely urgent procedure. An application for a stay of execution under the ordinary procedure was one of the remedies which, according to the document setting out the Commissioner-General’s decision of June 1999, had been available to the applicants to challenge that decision. As, according to that decision, the applicants had only five days in which to leave the national territory, applications for a stay under the ordinary procedure did not of thelselves have suspensive effect and the Conseil d’État had forty-five days in which to decide such applications, the mere fact that that application had been mentioned as an available remedy had, to say the least, been liable to confuse the applicants. An application for a stay of execution under the extremely urgent procedure was not suspensive either. The Government stressed that the president of the division could at any time summons the parties to attend and, if appropriate, make an order for a stay of the deportation order before its execution, as the authorities were not legally bound to await the Conseil d’État’s decision before executing a deportation order. To compensate for that, the Conseil d’État had issued a practice direction requiring the registrar on an application for a stay under the extremely urgent procedure to contact the Aliens Office to establish the date scheduled for the repatriation and to make arrangements accordingly. Two remarks needed to be made about that system. Firstly, it was not possible to exclude the risk that in a system where stays of execution had to be applied for and were discretionary they might be refused wrongly, for instance if it was to transpire that a deportation order was subsequently quashed for failure to comply with the Convention. In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13. Secondly, even if the risk of error was in practice negligible, it appeared that the authorities were not required to defer execution of the deportation order while an application under the extremely urgent procedure was pending, not even for a minimum reasonable period to enable the Conseil d’État to decide the application. Further, the onus was in practice on the Conseil d’État to ascertain the authorities’ intentions regarding the proposed expulsions and to act accordingly, but there did not appear to be any obligation on it to do so. Lastly, it was merely on the basis of internal directions that the registrar of the Conseil d’État would contact the authorities for that purpose, and there was no indication of what the consequences might be should he omit to do so. Ultimately, the alien had no guarantee that the Conseil d’État and the authorities would comply in every case with that practice, that the Conseil d’État would deliver its decision, or even hear the case, before his expulsion, or that the authorities would allow a minimum reasonable period of grace. Each of those factors made the implementation of the remedy too uncertain to enable the requirements of Article 13 to be satisfied. As to the overloading of the Conseil d’État’s list and the risks of abuse of process, the Court considered that Article 13 imposed on the Contracting States the duty to organise their judicial systems in such a way that their courts could meet its requirements. In that connection, the importance of Article 13 for preserving the subsidiary nature of the Convention system had to be stressed. In conclusion, the applicants had not had a remedy available that satisfied the requirements of Article 13 and the objection to the complaint of a violation of Article 4 of Protocol No. 4 had to be dismissed.

Conclusion: violation (four votes to three).

Article 41 – The Court awarded 10,000 euros (EUR) for non-pecuniary damage and EUR 9,000 for costs and expenses.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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