Information Note on the Court’s case-law No. 28

March 2001

Čonka and Ligue des droits de l’homme v. Belgium (dec.) - 51564/99

Decision 13.3.2001 [Section III]

Article 3

Degrading treatment

Number written by pen on the hands of applicants in the process of being expelled: inadmissible

Expulsion

Return of gypsies to Slovakia, where they are allegedly ill-treated and discriminated against: inadmissible

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: admissible

Article 5-2

Information on reasons for arrest

Arrest of applicants with a view to their expulsion after being summoned to complete in their asylum requests: admissible

Article 5-4

Review of lawfulness of detention

Applicants allegedly unable to make use of available remedies: admissible

Article 14

Discrimination

Expulsion measures allegedly based on national origin and belonging to a minority: inadmissible

Article 34

Victim

Status of victim of an association: incompatible ratione personae

Hinder the exercise of the right of petition

Refusal of Government to follow an indication given under Rule 39 of the Rules of the Court: inadmissible

Article 4 of Protocol No. 4

Prohibition of collective expulsion of aliens

Alleged failure to examine the specific situation of each individual prior to expulsion: admissible

The first four applicants are Slovakian nationals of gypsy origin. The fifth applicant is the Ligue des droits de l’homme (Human-Rights League), an association. The first four applicants asserted that when the police had taken no action after they had been assaulted in Slovakia, they had fled their country for Belgium, where they had requested political asylum on 12 November 1998. On 3 March 1999 orders were made declaring their asylum applications inadmissible, refusing them the right to enter Belgium and requiring them to leave the territory within five days. On 5 March 1999 the applicants lodged an appeal under the expedited procedure with the General Commissioner for Refugees and Stateless Persons against those orders. On 18 June 1999 the General Commissioner upheld the decision of the Aliens’ Department refusing them asylum and stipulated that the five-day period had started to run again. On 28 October 1999 the applicants’ applications to have that decision set aside and for a stay of execution were struck out by the Conseil d’État on the ground that the applicants had failed to comply with a request to pay court fees. At the end of September 1999 several families of Slovak gypsies, including the first four applicants, received notice from the Ghent police requiring their attendance on 1 October to fill in a form relating to their application for asylum. Once at the police station the applicants were served with a further order, dated 29 September 1999, to leave the territory, an order for their transfer to the Slovakian border and an order for their detention for that purpose. The two remedies that lay against the order were set out in the document. A few hours later the applicants and other gypsy families were taken to a closed transit lounge, where they were informed that no further appeal lay against the deportation order. On 5 October the applicants and other gypsy families were taken to a military airport. Once there, their seat number on board was marked on their hands with a ballpoint point. The aircraft took off from Belgium on a flight to Slovakia at 5.45 p.m. They had in the meantime lodged an application with the Court on 4 October and sought the application of Rule 39. The following day the Vice-President of the Third Section made an order at 4.20 p.m. applying Rule 39 until midnight on 12 October. That decision was communicated by telephone at 4.30 p.m. (and confirmed by facsimile transmission at 6.30 p.m.) to the Delegate of the Agent of the Belgian Government and the Permanent Representative of the Belgian Republic at the Council of Europe.

Preliminary objection (standing as victim): The Ligue des droits de l’homme could not claim to be a victim of measures that had allegedly infringed rights of the members of the Conka family under the Convention: incompatible ratione personae .

Inadmissible under Article 3: preliminary objection (non-exhaustion) – an action under Articles 1382 et seq. of the Civil Code would only have been able to secure the payment of damages ex post facto and such payment did not satisfy the obligations which Article 3 imposed on Contracting States: Preliminary objection dismissed.

(degrading treatment) –  the Government had explained that a number had been marked on the applicants’ hands in order to identify the seat allocated to each passenger. However, while that procedure could be considered unfortunate, it had been made necessary as much by the existing infrastructure as by any concern to keep control over the passengers. The authorities had not intended to cause any humiliation. Furthermore, the same procedure had been used for the humanitarian transfer of Kosovo refugees to Belgium. In the light of those explanations, the Court had to consider that the minimum level of severity required for the treatment to come within Article 3 had not been attained: manifestly ill-founded.

Inadmissible under Article 8: there was insufficient evidence to support a finding that the procedure complained of (marking a number on the applicants’ hands) had any adverse effects on their physical or mental integrity such as to amount to an interference with their right to respect for their private life: manifestly ill-founded.

Admissible under Article 5 § 1, § 2 and § 4: preliminary objection (non-exhaustion) – the preliminary injection had to be joined to the merits: admissible.

Inadmissible under Article 3 (expulsion): The documents and reports furnished to the Court by the applicants contained information about the violence and discrimination to which the gypsy community in Slovakia were subjected. They did not however establish that the applicants were personally under threat. In that connection, substantial weight had to be attached to the lack of any evidence that the applicants had suffered any violence or ill-treatment since their return to Slovakia and to the fact that their son had chosen to rejoin them of his own free will in April 2000: manifestly ill-founded.

Admissible under Article 4 of Protocol No. 4.

Inadmissible under Article 14 taken together with Article 3 and with Article 4 of Protocol No. 4: the authorities’ choice regarding who should be expelled could not be considered as not being objectively and reasonably justified since the criterion used for selection was not nationality or ethnic origin, but the fact that they belonged to an immigration network whose impact needed to be curbed. Nor, in view of the Court’s declaration that the complaint of a violation of Article 3 was manifestly ill-founded, did it appear that the measures in issue could be considered disproportionate to the intended aim: manifestly ill-founded. A like conclusion applied to the complaint under Article 14, taken together with Article 4 of Protocol No. 4, since that complaint was based on the same facts.

Admissible under Article 13.

Inadmissible under Rule 39 of the Rules of Court and Article 34 of the Convention: as the Government had accepted, they were informed of the decision of the Vice-President of the Third Section of the Court to apply Rule 39 by telephone at 4.30 p.m. on 5 October 1999 through the intermediary of both the Delegate of the Agent and the Permanent Representative of Belgium at the Council of Europe. That decision had been confirmed by facsimile transmission sent at 6.10 p.m. Nevertheless, the Belgian authorities had expelled the applicants at 5.45 p.m. that evening without indicating why they had disregarded the measures imposed under Rule 39. That conduct hardly appeared compatible with “the need to cooperate fairly with the Court when the State in question considered it possible and reasonable [to do so]”. However, a power to order interim measures cannot be inferred from either Article 34 in fine or any other source, although any refusal to follow a recommendation under Rule 39 had to be regarded as aggravating any breach of the requirements of Article 3 that might later be found. As for the difficulties encountered by the applicants following their expulsion to Slovakia, it did not appear that they had attained a degree that hindered their right under Article 34: manifestly ill-founded.

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

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