Landmark Decision by Strasbourg Court in Expulsion Case

07 May 2002

On February 5, 2002, the European Court of Human Rights ruled that Belgium had violated key provisions of the European Convention on Human Rights when it collectively expelled, in October 1999, seventy-four Roma from Slovakia who were seeking asylum in Belgium. In connection with the case, the Court awarded 10,000 euros in damages to a Romani family called Čonka, 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.

On October 5, 1999, Belgium expelled seventy-four 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, 1999. 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 (ECHR). Detailed information on the case is available on the Internet at: http://errc.org/publications/indices/belgium.shtml or by contacting the offices of the ERRC.

In connection with the case, Mr Jan Čonka, his wife, Mrs Maria Čonková, and their children Nad'a Čonková and Nikola Čonková, 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, 2002, 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 Čonka 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 Čonka 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.ehr.coe.int. A description of 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.

(ERRC)