Interim Resolution ResDH(2006)25

concerning the judgment of the European Court of Human Rights of 5 February 2002 (final on 5 May 2002 )

in the case of ÄŒonka against Belgium

(Adopted by the Committee of Ministers on 5 April 2006 at the 961st meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the case of Čonka against Belgium (application 51564/99), delivered on 5 February 2002, in which the Court found violations of Article 5 §§ 1 and 4, Article 4 of Protocol No. 4 and Article 13 of the Convention taken together with Article 4 of Protocol No. 4, on grounds of the means deployed to secure the arrest of the applicants, Slovak nationals of Rom origin seeking asylum, and the conditions of their expulsion in 1999, as well as the haphazard treatment of the appeals they had lodged in this connection;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the Government of Belgium to inform it of the measures taken consequent to the European Court ’ s judgment, having regard to Belgium ’ s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Recalling that the obligation for all member states to abide by the judgments of the Court (Article 46, paragraph 1, of the Convention) includes, inter alia, the obligation to adopt general measures to prevent new violations of the Convention similar to those found in the Court ’ s judgments, including – as far as possible –interim measures until the necessary general reforms take effect;

Noting in this respect with satisfaction the interim measures taken swiftly following the Court judgment, including the publication of the judgment by the Ministry of Justice, the adoption by the Minister of the Interior of a circular addressed to the Director General of the Aliens Office (July 2002) and the adoption of a royal decree laying down the system and rules of functioning of the detention centres managed by the Aliens Office (August 2002);

Noting with great interest that the Minister of the Interior has embarked on a sweeping reform of the Conseil d ’ Etat and of proceedings relating to aliens, taking account of the requirements of the Convention, particularly in connection with the Čonka judgment, and that this reform bill should go before parliament in 2006;

Encourages the authorities to continue this reform;

Declares, after examining the information supplied by the Government of Belgium, that it has provisionally exercised its functions under Article 46, paragraph 2, of the Convention in this case,

Decides to resume consideration of this case as far as general measures are concerned once sufficient progress has been made on the legislative reforms, or at the latest at its first meeting in 2007.

Appendix to Resolution ResDH(2006)25

Information provided by the Belgian authorities

during the examination of the case of ÄŒonka v. Belgium

by the Committee of Ministers

Measures adopted in 2002

Concerning the violation of Article 5§1 and Article 4 of Protocol No. 4 (circumstances of placement in detention and expulsion from the territory)

The European Court judgment was promptly published on the Internet site of the Ministry of Justice. The judgment also received wide media coverage.

The Belgian authorities believe that, since European Court judgments are given direct effect in Belgium , this measure has made it possible to avoid any further violations of a similar nature. They note, in this respect, that no new violation of a similar nature has occurred since the Court judgment.

Concerning the violation of Article 5§4 (access to a remedy against the detention measure)

A royal decree adopted on 2 August 2002 provides that, upon arrival in a detention centre managed by the Aliens Office, each inmate shall be issued with an information brochure explaining inter alia the possibilities of appeal against detention, the possibilities of lodging a complaint concerning the circumstances of detention and of obtaining legal assistance. The brochure is to be available in at least the three national languages and in English (Article 17). According to the Belgian authorities, it is also available in fifteen or so other languages. Furthermore, the director of the centre, his deputy or a member of staff designated by him must indicate to the inmate the reasons for his detention, the legal and regulatory provisions applicable to him and the possible remedies against this decision. This must be done in a language understood by the inmate. The services of an interpreter must be called upon if necessary (Article 17).

The inmate is entitled to legal assistance. The director of the centre must ensure that the inmate is able to obtain the legal assistance provided for in law (Article 62).

The inmates are entitled to telephone their lawyer each day, free of charge, between eight o ’ clock in the morning and ten o ’ clock at night. A lawyer may telephone his client at any time. Telephone calls between an inmate and his lawyer may not be prohibited (Article 63). According to the Belgian authorities, the inmates of a centre may also fax documents to their lawyers if they expressly request to do so. Finally, lawyers and interpreters assisting them have access to the centre every day, at least between eight o ’ clock in the morning and ten o ’ clock at night, if they have a client there and on condition of being able to prove their credentials with a valid professional card. Visits by lawyers may not be prohibited (Article 64).

Concerning the violation of Article 13 taken together with Article 4 of Protocol No. 4 (nature of remedies against expulsion measures)

To give effect to the European Court ’ s judgment, the Minister of the Interior adopted a circular on 19 July 2002, concerning the "execution of orders to leave the territory issued in respect of certain refused asylum seekers" addressed to the Director General of the Aliens Office. The circular lays down the rule 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 a refused asylum seeker, the order shall not be executed for as long as the Conseil d ’ Etat has not ruled on this request for a stay of execution under extremely urgent procedure". Does this circular apply to persons turned back at the border?

Legislative reform under way

Furthermore, the Belgian authorities have said that a sweeping reform of the Conseil d ’ Etat and of proceedings relating to aliens is under way. One of the measures envisaged in this connection is the setting up of a Court for proceedings relating to aliens ( Conseil du contentieux des étrangers ). Where asylum is concerned, it is planned

that this new court will have the power to make any order required by the justice of a case and that appeals lodged with it will be ispo jure suspensive. For the other aspects of proceedings relating to aliens, the prerogatives of the new court will be limited, in principle, to suspending and repealing orders and, in the event of a request for stay of execution being lodged, there is provision for a stay of expulsion for a certain period which may be extended.

Finally, the Conseil d ’ Etat will no longer be involved in proceedings relating to aliens, except as a court of cassation for the decisions taken by the new court. The Ministry of the Interior submitted two preliminary draft laws to the legislation section of the Conseil d ’ Etat on 10 January 2006 (one on reform of the Conseil d ’ Etat and the setting up of the Court for proceedings relating to aliens and the other concerning amendment of the law of 15 December 1980 on the entry, residence, settlement and expulsion of aliens). The legislation section issued its opinion on 21 February 2006. The Minister of the Interior hopes to put these two preliminary draft laws before parliament before summer.