CONCURRING OPINION OF JUDGE SICILIANOS

1 . In his partly dissenting opinion, my esteemed and distinguished colleague, Judge Eicke , raises an interesting issue concerning the nature of the violation of Article 1 of Protocol No. 7 to the Convention in the present case. According to the judgment, there has been an actual violation of this provision because some of the procedural guarantees contained therein have not been respected. This can be seen from paragraph 2 of the operative part, according to which “... there has been a violation of paragraph 1 (a) and (b) of Article 1 of Protocol No. 7 to the Convention” (my emphasis). According to Judge Eicke , this is not an actual but rather a “would-be” violation of Article 1 of Protocol No. 7. He would instead have concluded that there:

“ would have been a violation of Article 1 of Protocol No. 7 to the Convention if the applicant had been expelled on the basis of the decision of 3 February 2014 ’ (see mutatis mutandis paragraphs 1 and 3 of the operative part of Paposhvili v. Belgium [GC], no. 41738/10, ECHR 2016 ‑ I) or even that there ‘ would be a violation of Article 1 of Protocol No 7 to the Convention if the applicant were expelled on the basis of the decision of 3 February 2014 ’ (see mutatis mutandis paragraph 3 of the operative part of Sultani v. France , no. 45223/05, ECHR 2007 ‑ IV (extracts)”.

2 . I respectfully disagree with this approach for the following reasons.

3 . Article 1 of Protocol No. 7 does not concern the substantive grounds for expulsion. It is only focused on a series of procedural guarantees. It was meant to constitute added value to the already existing provisions in respect of aliens, either in the Convention as interpreted by the then European Commission and the Court, or in other international instruments. This is clearly stated in the Explanatory Report in respect of Protocol No. 7:

“6. In line with the general remark made in the int roduction (see above, paragraph 4), it is stressed that an alien lawfully in the territory of a member State of the Council of Europe already benefits from certain guarantees when a measure of expulsion is taken against him, notably those which are afforded by Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private and family life), in connection with Article 13 (right to an effective remedy before a national authority) of the European Convention on Human Rights, as interpreted by the European Commission and Court of Human Rights and – in those States which are Parties – by the European Convention on Establishment of 1955 (Article 3), the European Social Charter of 1961 (Article 19, paragraph 8), the Treaty establishing the European Economic Community of 1957 (Article 48), the Geneva Convention relating to the status of refugees of 1951 (Articles 32 and 33) and the United Nations Covenant on Civil and Political Rights of 1966 (Article 13).

7. Account being taken of the rights which are thus recognised in favour of aliens, the present article has been added to the European Convention on Human Rights in order to afford minimum guarantees to such persons in the event of expulsion from the territory of a Contracting Party. The addition of this article enables protection to be granted in those cases which are not covered by other international instruments and allows such protection to be brought within the purview of the system of control provided for in the European Convention on Human Rights ” (Explanatory Report to the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 117, paragraphs 6-7, my emphasis). ”

4 . As has been observed by the UN Human Rights Committee in relation to the corresponding provision of the International Covenant on Civil and Political Rights (ICCPR) – Article 13 ICCPR – the purpose of the procedural guarantees contained therein “is clearly to prevent arbitrary expulsion” (CCPR General Comment No. 15/27 (1986): “The Position of Aliens Under the Covenant”, paragraph 10). The same idea is applicable mutatis mutandis to the guarantees contained in Article 1. In other words, the procedural guarantees of Article 1 have a preventive character: to provide for an accessible and foreseeable legal basis for expulsion and allow the alien concerned to submit reasons against his expulsion, to have his case reviewed and to be represented for these purposes before the competent authority. This is the quintessence of the obligations of States Parties to Protocol No. 7 under its Article 1. What really matters according to this provision is the procedure as such .

5 . In order for the procedural rights recognised in Article 1 of Protocol No. 7 to be really effective, they should in principle be exercised before the execution of an expulsion order. To accept the opposite would drastically diminish their effectiveness. This interpretation is consistent with the general preventive character of Article 1 of Protocol No. 7, but also with paragraph 2 of this provision, which introduces an exception to the rule, when the expulsion “is necessary in the interests of public order or is grounded on reasons of national security”. Such interpretation clearly flows from the Explanatory Report:

“15. As a rule, an alien should be entitled to exercise his rights under sub-paragraphs a, b and c of paragraph 1 before he is expelled. However, paragraph 2 permits exceptions to be made by providing for cases where the expulsion before the exercise of these rights is considered necessary in the interest of public order or when reasons of national security are invoked. These exceptions are to be applied taking into account the principle of proportionality as defined in the case-law of the European Court of Human Rights. ...” (Explanatory Report, cited above, para. 15). ”

6 . It is true that the most common “scenario” in the (relatively few) cases concerning Article 1 of Protocol No. 7, is that an individual introduces an application to the Court after his expulsion (see for instance Takush v. Greece , no. 2853/09, 17 January 2012, with further references). In the present case, by contrast, the applicant has not (yet) been expelled. However, the enforcement of the order compelling the applicant to leave the respondent State is not subject to any formal requirements. Accordingly, the applicant risks expulsion at any time (paragraph 22 of the judgment). This is not only pertinent for purposes of the applicability of Article 1. It is also a necessary and sufficient condition for finding a violation of Article 1 of Protocol No. 7, if the guarantees provided therein have not been respected. As stated above, subject to the exceptions provided for in paragraph 2, Article 1 of Protocol No. 7 is geared to the phase preceding expulsion . If one accepts the proposition that the object and purpose of this provision is to introduce a series of guarantees of a preventive character, tending to protect the individual from arbitrary expulsion (see above, paragraph 4), then it seems logical to also accept that the issuance of an order to leave the country, adopted without those guarantees having been respected and enforceable at any time, amounts to a violation of Article 1 of Protocol No. 7.

7 . There lies the main difference between Article 1 of Protocol No. 7 and Article 3 of the Convention, as interpreted by the Court in an expulsion context (as for instance in Paposhvili v. Belgium , cited above, or in J.K. v . Sweden , no 59166/12 [GC], 23 August 2016, §§ 77 et seq.). Article 1 of Protocol No. 7 is mainly about procedure . Article 3 of the Convention is essentially about substance , i.e. the substantive evaluation of the risk that the applicant would face ill-treatment if expelled to another country. Article 1 of Protocol No. 7 mainly concerns the phase preceding expulsion. Article 3 of the Convention is geared to the future, i.e. to the risk faced after an eventual expulsion . This is precisely the reason why the Court has accepted the principle of examining the risk faced by the applicant, under Article 3 (and also under Article 2 of the Convention), by taking into account elements that are subsequent to the domestic decisions (see for instance F.G. v. Sweden [GC], no. 43611/11, 23 March 2016, esp. § 157). In such circumstances it is perfectly understandable and indeed necessary to find only a conditional – a “would-be” – violation. It would be unthinkable to hold that the international responsibility of a State under the Convention is engaged for not having evaluated elements that were not even submitted to the national authorities. More generally, the whole ratio of Article 1 of Protocol No. 7 differs from that of other provisions of the Convention applied in an expulsion context and especially Article 3. It is, therefore, not appropriate, in my view, to draw a parallel between those provisions and to necessarily apply the same solutions.

8 . For all those reasons, I do believe that the present judgment is correct in finding an actual and not a conditional violation of Article 1 of Protocol No. 7.