arch/ive/ief (2000 - 2005)

Belgium, found guilty of mass expulsion of Roma
European Roma Rights Center (ERRC) welcomes Landmark Decision by Strasbourg Court
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ERRC welcomes the February 5, 2002 decision by the European Court of Human Rights, finding that Belgium violated key provisions of the European Convention on Human Rights when it collectively expelled, in October 1999, 74 Roma from Slovakia who were seeking asylum in Belgium. In connection with the case, the Court Tuesday awarded 10,000 euros in damages to a Romani family called Conka, who had filed a complaint to the Court in relation to the case.

The ruling is not only the first ever by the Court in a case involving the collective expulsion of Roma, it is actually the first time the Court has ever found a violation of Article 4 of Protocol 4 to the European Convention, which bans the collective expulsion of aliens. It is, in addition, the first time the Court has ever found a Western European country in violation of the Convention where Roma rights are involved. The decision also appears to break new ground in terms of burden of proof issues. Commenting on the ruling, ERRC Executive Director Dimitrina Petrova said, "This is a very important decision for the Romani family concerned, and it also has implications for future cases in the context of post-September 11 Fortress Europe policies."

On October 5, 1999, Belgium expelled 74 Slovak Romani asylum seekers after attempts to detain approximately one hundred and fifty Slovak Roma in two Belgian cities. On September 30 and October 1, 1999, local authorities in the city of Ghent ordered a number of Romani asylum seekers to appear before the police. Some came to the police station after receiving written summons, while others were reportedly detained by police during house searches. Many Roma were reportedly lured to the police office under the false pretext that they had to complete additional forms as a part of their asylum application. Once at the police station, the Roma were immediately detained and transferred to a closed detention centre called "127bis Steenokkerzeel" on the outskirts of Brussels. They remained in the centre for four days under heavy police guard until their deportation on October 5. The Belgian government's decision to proceed with the deportation came in the face of a decision earlier the same day by the European Court of Human Rights in Strasbourg expressly requesting that the Belgian government stay deportation for eight days to permit consideration of whether such deportation would violate the European Convention of Human Rights. Detailed information on the case is available on the Internet at: http://errc.org/publications/indices/belgium.shtml , as well as by contacting the offices of the ERRC.

In connection with the case, Mr Jan Conka, his wife Maria Conkova, and their children Nad'a Conkova and Nikola Conkova, with the assistance of local counsel in Belgium, filed an application to the European Court of Human Rights, asserting that their fundamental rights had been violated. The ERRC assisted in preparing documentation for the submission.

In its February 5 statement, the European Court announced that it had found violations of the following articles of the European Convention on Human Rights (excerpts from the reasoning of the Court in the Conka case follow each Article violated by Belgian authorities):

Article 5(1), guaranteeing the right to liberty and security of person: "[...] 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."

Article 5(4), guaranteeing the right to take proceedings by which lawfulness of detention shall be decided: "[...] The Court identified a number of factors which undoubtedly had made an appeal to the committals division less accessible. [...] the authorities had not offered any form of legal assistance at either the police station or the centre. [...] Furthermore - and this factor was decisive in the eyes of the Court - 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. Thus, the applicants' lawyer had been unable to lodge an appeal with the committals division."

Article 4 of Protocol 4, prohibiting the collective expulsion of aliens: "[...] 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." The Court's finding of a violation of Article 4 of Protocol 4 was its first ever. The wording of the Court's decision on the Article 4 of Protocol 4 violation suggests that the Court reached its decision as a result of being unable "to eliminate all doubt that the expulsion might have been collective." The Court appears to have adopted the reasoning that a prima facie case under Article 4 of Protocol 4 may shift the burden to the government to prove that a violation has not taken place.

Article 13 (guaranteeing the right to an effective remedy) taken together with Article 4 of Protocol 4: "Ultimately, the alien had no guarantee [...] 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. [...] In conclusion, the applicants had not had a remedy available that satisfied the requirements of Article 13 to air their complaint under Article 4 of Protocol No. 4."

The Court awarded the Conka family 10,000 euros for non-pecuniary damage and 9,000 euros for legal costs and expenses. The full text of the decision is available on the Internet website of the European Court of Human Rights: http://www.echr.coe. int.

ERRC concerns related to the protection of Romani refugees are available on the Internet at: http://errc.org/publications/position/refugee.shtml. A position paper on other ERRC concerns related to Fortress Europe policies and Roma is available by contacting the offices of the ERRC.
European Roma Rights Center mailto:errc@errc.org



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Press release issued by the Registrar of the European Court of Human Rights

JUDGMENT IN THE CASE OF CONKA v. BELGIUM

The European Court of Human Rights notified a judgment in writing today in the case of Conka v. Belgium (no. 51564/99). (The judgment is not final.[fn])

The Court held:

unanimously, that there had been a violation of Article 5 ' 1 (right to liberty and security) of the European Convention on Human Rights;

unanimously, that there had been no violation of Article 5 ' 2 (right to be informed of the reasons for arrest) of the Convention;

unanimously, that there had been a violation of Article 5 ' 4 (right to take proceedings by which lawfulness of detention shall be decided);

by four votes to three, that there had been a violation of Article 4 of Protocol No. 4 (prohibition of the collective expulsion of aliens);

unanimously, that there had been no violation of Article 13 (right to an effective remedy) taken together with Article 3 (prohibition of inhuman or degrading treatment);

by four votes to three, that there had been a violation of Article 13 taken together with Article 4 of Protocol No. 4.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 10,000 euros for non-pecuniary damage and 9,000 euros for legal costs and expenses.

1. Principal facts

The applicants, Jan Conka and Maria Conkova and their children, Nad'a Conkova and Nikola Conkova, are Slovakian nationals of Romany origin.

In November 1998 they left Slovakia for Belgium, where they requested political asylum on the ground that they had been violently assaulted on several occasions by skinheads in Slovakia. On 18 June 1999 the Commissioner-General for Refugees and Stateless Persons upheld a decision of the Minister of the Interior declaring their applications for asylum inadmissible and the applicants were required to leave the territory within
five days.

On 3 August 1999 the applicants lodged applications with the Conseil d'Itat for judicial review of the decision of 18 June 1999 and for a stay of execution under the ordinary procedure. They also applied for legal aid.

On 23 September 1999 the Conseil d'Itat dismissed the applications for legal aid on the ground that they had not been accompanied by the requisite means certificate and invited the applicants to pay the court fees within fifteen
days.

In September 1999 the Ghent police sent a notice to a number of Slovakian Romany families, including the 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 and a decision for their removal to Slovakia and their detention for that purpose. A Slovakian-speaking interpreter was present when they were arrested.

They were then taken with other Romany families to the Steenokkerzeel Closed Transit Centre, near Brussels. On 5 October 1999 they and some 70 other refugees of Romany origin whose requests for asylum had also been turned down were taken to Melsbroek military airport, and put on a plane for Slovakia.

2. Procedure and composition of the Court

The application was lodged with the Court on 4 October 1999 and declared partly admissible on 13 March 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,
Willi Fuhrmann (Austrian),
Pranas Kuris (Lithuanian),
Karel Jungwiert (Czech)
Nicolas Bratza (British),
Kristaq Traja (Albanian), judges,
Jan Velears (Belgian), ad hoc judge

and also Sally Dolli, Section Registrar.

3. Summary of the judgment

Complaints

Relying on Articles 5 and 13 of the Convention and Article 4 of Protocol No.4, the applicants complained, in particular, about the circumstances of their arrest and expulsion to Slovakia.

Decision of the Court

Article 5 ' 1

Although the Court by no means excluded its being legitimate for the police to use ploys 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 may be found to contravene the general principles stated or implicit in the Convention.

In that regard, there was every reason to consider that while the wording of the notice was "unfortunate", it had not been the result of inadvertence; on the contrary, it had been deliberately chosen to secure the compliance of
the largest possible number of recipients. It followed that, even as regards aliens who were in breach of the immigration rules, 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. Consequently, there had been a violation of
Article 5 ' 1.

Article 5 ' 2

The Court observed that on their arrival at the police station the applicants had been informed of the reasons for their arrest and of the available remedies. A Slovakian-speaking interpreter had also been present. Even though those measures by themselves were not in practice sufficient to allow the applicants to exercise certain remedies, the information thus furnished to them nonetheless satisfied the requirements of Article 5 ' 2. Consequently, there had been no violation of that provision.

Article 5 ' 4

The Court identified a number of factors which undoubtedly had made an appeal to the committals division less accessible. These included the fact that the information on the available remedies handed to the applicants on
their arrival at the police station had been printed in tiny characters, in a language they did not understand. Only one interpreter had been available to assist the large number of Romany families who attended the police station in understanding the verbal and written communications addressed to them and although he had been present at the police station, he had not stayed with them at the closed centre. In those circumstances, the applicants had undoubtedly had little prospect of being able to contact a lawyer from the police station with the help of the interpreter and, although they could have contacted a lawyer by telephone from the closed centre, they would no longer have been able to call upon the interpreter's services; despite those difficulties, the authorities had not offered any form of legal assistance at either the police station or the centre.

Furthermore - and this factor was decisive in the eyes of the Court - 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. Thus, the applicants' lawyer had been unable to lodge an appeal with the committals division. Consequently, there had been a violation of Article 5 ' 4.

Article 4 of Protocol No. 4

The Court noted that the detention and deportation orders had been issued to enforce an order to leave the territory that had been made solely on the basis of section 7, paragraph 1, (2) of the Aliens Act, and the only
reference to the personal circumstances of the applicants was to the fact that their stay in Belgium had exceeded three months. In particular, the document made no reference to their application for asylum or to the decisions on that issue. In those circumstances and in view of the large number of persons of the same origin who had suffered the same fate as the applicants, the Court considered that the procedure followed did not enable it to eliminate all doubt that the expulsion might have been collective.

That doubt was reinforced by a series of factors: firstly, 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; secondly, all the aliens concerned had been required to attend the police station at the same time;

thirdly, the orders served on them requiring them to leave the territory and for their arrest had been couched in identical terms; fourthly, it had been very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.

In short, 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. In conclusion, there had been a violation of Article 4 of Protocol No 4.

Article 13

In the instant case, the Conseil d'Itat 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 that procedure was ill-suited to the circumstances of the case. They considered that the applicants should have used the extremely urgent procedure.

The Court was bound to observe, however, that 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 18 June 1999, had been available to the applicants to challenge that decision. As, according to that decision, the applicants had had only five days in which to leave the national territory, an application for a stay
under the ordinary procedure did not of itself have suspensive effect and the Conseil d'Itat 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. In that connection, the Court pointed out that the requirements of Article 13, and of the other provisions of the Convention, took the form of a guarantee and not of a mere statement of intent or a practical arrangement. However, 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'Itat to decide the application. Further, the onus was in practice on the Conseil d'Itat 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'Itat, acting on the instructions of a judge, contacted 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'Itat and the authorities would comply in every case with that practice, that the Conseil d'Itat 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. In conclusion, the applicants had not had a remedy available that satisfied the requirements of Article 13 to air their complaint under Article 4 of Protocol No. 4. Accordingly, there had been a violation of Article 13 of the Convention.

Judge Velaers expressed a partly concurring and partly dissenting opinion and Judge Jungwiert, joined by Judge Kuris, a dissenting opinion, which are annexed to the judgment.

***

The Court's judgments are accessible on its Internet site: (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F - 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.

[fn] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment



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