European Court of Human Rights - case of Conka v. Belgium (February 2002)

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EUROPEAN COURT OF HUMAN RIGHTS

CONKA v. BELGIUM

(Application no. 51564/99)

5 February 2002

[...]

THE FACTS

I.THE CIRCUMSTANCES OF THE CASE

7.Mr Ján Conka, Mrs Mária Conková, Miss Nad'a Conková and Miss Nikola Conková are Slovakian nationals of Romany origin who were born in 1960, 1961, 1985 and 1991 respectively. The first two applicants are the parents of the third and fourth applicants.

8.The applicants say that on several occasions between March and November 1998 they were violently assaulted by skinheads in the Slovakian Republic. Indeed, in November 1998 Mr Conka had been so seriously injured in an assault that he had had to be hospitalised. The police had been called but had refused to intervene. Several days later Mr and Mrs Conka had been subjected to renewed insults and threats by skinheads, but the police had again refused to intervene.

As a result of those constant threats the applicants had decided to flee Slovakia and travel to Belgium, where they had arrived at the beginning of November 1998: Mr Conka and the two minor children on 6 November and Mrs Conka two days' later.

A.The applicants' request for asylum

9.On 12 November 1998 the applicants requested political asylum in Belgium.

10.On 3 March 1999 their applications for asylum were declared inadmissible by the Minister of the Interior through the Directorate-General of the Aliens Office on the ground that they had not produced sufficient evidence to show that their lives were at risk in Slovakia for the purposes of the Geneva Convention relating to the Status of Refugees. The decisions refusing permission to remain in Belgium were accompanied by a decision refusing permission to enter the territory itself endorsed with an order to leave the territory within five days.

11.On 5 March 1999 the applicants lodged an appeal under the urgent-applications procedure with the Commissioner-General for Refugees and Stateless Persons ("the Commissioner-General") against the decisions refusing them permission to remain in Belgium.

12.On 14 April 1999 Mr Conka was invited to attend the General Commissioner's office to set out his grounds for seeking asylum. He failed to keep the appointment.

13.On 23 April 1999 Mrs Conková, assisted by an interpreter, was heard by representatives of the Commissioner-General's Office at Ghent Prison, where she was in custody pending trial. On 17 May 1999 she was sentenced to eight months' imprisonment for theft by Ghent Criminal Court.

14.On 18 June 1999 the Commissioner-General's Office upheld the decision of the Aliens Office refusing the applicants permission to remain. Its decision in Mr Conka's case was based on his failure to attend his appointment without showing due cause. As regards Mrs Conková, in some two pages of reasons the Commissioner pointed out major discrepancies in her deposition and expressed serious doubts about her credibility.

For example, Mrs Conková had declared among other things that on 4 November 1998 her husband, Mr Conka, had been assaulted by skinheads so violently that he had had to be taken to hospital. The police had been called but had not come out. That incident had been the direct cause of their decision to flee Slovakia. However, the Commissioner-General considered that statement to be refuted by the fact that the travel tickets had been issued before the above incident on 4 November: Mrs Conková's plane tickets on 2 October and her husband's and their children's bus tickets for the journey to Belgium on 2 November 1998. Furthermore, Mrs Conková's account of the incident did not match her stepdaughter's, in particular on the important issue of whether the police had attended the scene.

The Commissioner stipulated in his decisions that the applicants could be deported to the country from which they had fled (Slovakia), and that for the purposes of calculating the five-day period for leaving the territory, which had been suspended by the application under the urgent procedure, time began to run again from the date of service of the decisions on the applicants.

15.On 24 June 1999 Mrs Conková was released and a new order was served on her to leave the territory within five days, that is to say by midnight on 29 June.

16.On 3 August 1999 the applicants lodged applications with the Conseil d'État 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.

17.On 23 September 1999 the Conseil d'État dismissed the applications for legal aid on the grounds that they had not been accompanied by the means certificate required by Article 676-3 of the Judicial Code, a photocopy, rather than the original, of the certificate having been enclosed with Mrs Conková's application. Consequently, the applicants were invited by the orders refusing legal aid to pay the court fees within fifteen days after service. As they failed to respond to that invitation, their applications for judicial review and for a stay of execution were struck out of the list on 28 October 1999.

B.The applicants' arrest and deportation

18.At the end of 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 was drafted in Dutch and Slovakian and stated that their attendance was required to enable the files concerning their applications for asylum to be completed.

19.At the police station, where a Slovakian-speaking interpreter was also present, the applicants were served with a fresh order to leave the territory dated 29 September 1999, accompanied by a decision for their removal to Slovakia and their detention for that purpose. The documents served, which were all in identical terms, informed the recipients that they could apply to the Conseil d'État for judicial review of the deportation order and for a stay of execution – provided that they did so within sixty days of service of the decision – and to the committals division (chambre du conseil) of the criminal court against the order for their detention. According to the Government, some of the aliens concerned were nevertheless allowed to leave the police station of their own free will on humanitarian grounds or for administrative reasons.

20.A few hours later the applicants and other Romany families, accompanied by an interpreter, were taken to a closed transit centre, known as Centre "127 bis", at Steenokkerzeel near Brussels Airport. It appears that the interpreter only remained at the centre briefly. According to the Government, he could have been recalled to the centre at the applicants' request. The applicants say that they were told that they had no further remedy against the deportation order.

21.While at the centre, the Slovakian families received visits from a delegation of Belgian Members of Parliament, the Slovakian Consul, delegates of various non-governmental organisations and doctors. At 10.30 p.m. on Friday 1 October 1999 the applicants' counsel, Mr Van Overloop, was informed by the President of the Romany Rights League that his clients were in custody. Taking the view that he was still instructed by them, Mr Van Overloop sent a fax on 4 October 1999 to the Aliens Office informing it that the applicants were in Transit Centre no. 127 bis awaiting repatriation to Slovakia. He requested that no action be taken to deport them, as he had to take care of a member of their family who was in hospital. However, Mr Van Overloop did not appeal against the deportation or detention orders made on 29 September 1999.

22.On 5 October 1999 the families concerned were taken to Melsbroek military airport, where the seat numbers allocated to them in the aircraft were marked on their hands with a ballpoint pen. The aircraft left Belgium for Slovakia at 5.45 p.m.

23.Shortly afterwards the Minister of the Interior declared in reply to a parliamentary question put on 23 December 1999:

 "Owing to the large concentration of asylum seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia... Reports I have received from the Mayor of Ghent and the Director-General of the Aliens Office indicate that the operation was properly prepared, even if the unfortunate wording of the letter sent by the Ghent police to some of the Slovakians may have been misleading. Both the Aliens Office and the Ghent Police Department were surprised by the large number of Slovakians who responded to the notice sent to them. That factual circumstance resulted in their being detained in Centre 127 bis for deportation a few days later..."

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THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

34.The applicants alleged that their arrest at Ghent Police Station on 1 October 1999 entailed a violation of Article 5 § 1, the relevant part of which reads as follows:

"1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."

35.The Court observes that in its decision on the admissibility of the application it joined to the merits the Government's preliminary objection that the applicants' had failed to exhaust domestic remedies, as they had not appealed to the committals division of the criminal court under section 71 of the Aliens Act.

36.As regards the merits, the applicants denied that their arrest had been necessary to secure their departure from Belgium. They complained above all of the manner of their arrest, saying that they had been lured into a trap as they had been induced into believing that their attendance at the police station was necessary to complete their asylum applications when, from the outset, the sole intention of the authorities had been to deprive them of their liberty. They had therefore been deceived about the purpose of their attendance at the police station and, accordingly, there had been an abuse of power that amounted to a violation of Article 5 § 1.

Consequently, no blame could attach to the applicants for their refusal to place any further trust in the authorities and their decision not to lodge an appeal with the Belgian courts. In any event, any such appeal would have been futile in the circumstances. The applicants had been trapped by the authorities, assembled as part of a collective-repatriation operation and placed in closed centres where they were told that no appeal was available to them; accordingly, they would not have been able to contact their lawyer, Mr Van Overloop, directly.

Mr Van Overloop had not learnt of his clients' detention until Friday 1 October 1999, when he was informed by the President of the Romany Rights League. At no stage between the applicants' arrest and the execution of the deportation order had any direct contact between them and their lawyer been possible, in particular as they were not permitted to receive any telephone communications from the outside. Admittedly, they could have telephoned out, but they were convinced that it was impossible to appeal against their detention.

Consequently, Mr Van Overloop would not have been able to lodge an application with the Committals Division of the Ghent Criminal Court until Monday 4 October. Since the division sat on Mondays, Wednesdays and Fridays only, the case could not have been heard until Wednesday 6 October and the aircraft carrying the applicants left Belgium on Tuesday 5 October.

37.The Government pointed out that the applicants had been served on 3 March and 18 June 1999 with orders to leave the territory, which expressly stated that they were liable to detention with a view to deportation if they failed to comply. The applicants would therefore have been well aware that they were overstaying. Furthermore, Mrs Conková had been convicted of theft by the Ghent Criminal Court. In those circumstances, it was absurd to suggest that the applicants had been acting in good faith. On the contrary, the "clean-hands" doctrine or the nemo auditur adage had to be applied in their case.

In addition, the fact that the tenor of the notice was potentially ambiguous could not suffice to give rise to an inference that there had been an abuse of power. That was a serious accusation that could only be made out if the authority had acted solely for unlawful reasons, which was manifestly not the case. Besides, the Minister of the Interior had publicly expressed regret for the "unfortunate wording" of the notice. However, the fact that other aliens who had attended the police station after receiving the notice were released after their cases had been considered demonstrated that the notices had not been sent with the sole aim of carrying out arrests. Even if they had been, the method used was nonetheless preferable to going to aliens' homes or to their children's schools to arrest them. Therefore, any ruse there had been had been a "little ruse".

The Government saw no grounds on which the applicants could have been exempted from the requirement to lodge an appeal with the committals division of the criminal court. In their view, if the applicants were capable of applying to the European Court of Human Rights, they must have been equally capable in the same circumstances of appealing to the committals division.

38.The Court notes that it is common ground that the applicants were arrested so that they could be deported from Belgium. Article 5 § 1(f) is thus applicable in the instant case. Admittedly, the applicants contest the necessity of their arrest for that purpose; however, Article 5 § 1(f) does not demand that the detention of a person against whom action is being taken with a view to deportation be reasonably considered necessary, for example to prevent his committing an offence or fleeing. In this respect Article 5 § 1(f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that "action is being taken with a view to deportation" (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1862, § 112).

39.Where the "lawfulness" of detention is in issue, including the question whether "a procedure prescribed by law" has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among other authorities, the Bozano v. France judgment of 18 December 1986, Series A no. 111, p. 23, § 54, and the Chahal judgment cited above, p. 1864, § 118).

40.In the present case, the applicants received a written notice at the end of September 1999 inviting them to attend Ghent Police Station on 1 October to "enable the file concerning their application for asylum to be completed". On their arrival at the police station they were served with an order to leave the territory dated 29 September 1999 and a decision for their removal to Slovakia and for their arrest for that purpose. A few hours later they were taken to a closed transit centre at Steenokkerzeel.

[...]

44.In the instant case, the Court identifies a number of factors which undoubtedly affected the accessibility of the remedy which the Government claim was not exhausted. These include the fact that the information on the available remedies handed to the applicants on their arrival at the police station was printed in tiny characters and in a language they did not understand; only one interpreter was 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 was present at the police station, he did not stay with them at the closed centre; in those circumstances, the applicants 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 transit centre, they would no longer have been able to call upon the interpreter's services; despite those difficulties, the authorities did not offer any form of legal assistance at either the police station or the centre.

45.Whatever the position – and this factor is decisive in the eyes of the Court – as the applicants' lawyer explained at the hearing without the Government contesting the point, he was only 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, although he still regarded himself as acting for the applicants (see paragraph 21 above), he was unable to lodge an appeal with the committals division.

46.The Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, mutatis mutandis, the Matthews v. the United Kingdom judgment [GC], no. 24833/94, § 34, ECHR 1999-I). As regards the accessibility of a remedy invoked under Article 35 § 1 of the Convention, this implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy. That did not happen in the present case and the preliminary objection must therefore be dismissed.

Consequently, there has been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION

[...]

50.As to the merits, the Court reiterates that paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4... . Whilst this information must be conveyed "promptly" (in French: "dans le plus court délai"), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see, mutatis mutandis, Murray v. the United Kingdom, Series A no. 300-A, p. 31, § 72).

51.In the instant case, on their arrival at the police station, the applicants were served with the decision ordering their arrest. The document handed to them for that purpose stated that their arrest had been ordered pursuant to section 7, subparagraph 1, (2) of the Aliens Act, in view of the risk that they might seek to elude deportation. A note in the documents mentioned an appeal to the committals division of the criminal court as being an available remedy against the detention order.

52.The Court has already noted that when the applicants were arrested at the police station a Slovakian-speaking interpreter was present, notably for the purposes of informing the aliens of the content of the verbal and written communications which they received, in particular, the document ordering their arrest. Even though in the present case those measures by themselves were not in practice sufficient to allow the applicants to lodge an appeal with the committals division (see paragraph 46 above), the information thus furnished to them nonetheless satisfied the requirements of Article 5 § 2 of the Convention. Consequently, there has been no violation of that provision.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

53.The applicants also complained of a violation of Article 5 § 4 of the Convention, which reads as follows:

 "4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

They submitted that the only remedy available to them to challenge their detention was an appeal to the committals division of the criminal court under section 71 of the Aliens Act. However, that remedy did not satisfy the requirements of Article 5 § 4, since the committals division only carried out a very limited review of detention orders made under section 7 of the Aliens Act. That review was confined to the procedural lawfulness of the detention and the committals division did not have regard to the proportionality of the detention, that is to say to the issue whether in the light of the special facts of each case, detention was justified. Further, the circumstances of the applicants' arrest in the instant case were such that no appeal to the committals division would have been possible (see paragraph 36 above).

54.The Government, on the other hand, considered that the remedy satisfied all the requirements of Article 5 § 4.

55.The Court considers, firstly, that the fact that the applicants were released on 5 October 1999 in Slovakia does not render the complaint devoid of purpose, since the deprivation of liberty in issue lasted five days (compare with the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 20, § 45). It notes, however, that the Government's submissions on this point are the same as those on which they relied in support of their preliminary objection to the complaints under Articles 5 §§ 1, 2 and 4 of the Convention (see paragraphs 37 and 49 above). Accordingly, the Court refers to its conclusion that the applicants were prevented from making any meaningful appeal to the committals division (see paragraph 46 above). Consequently, it is unnecessary to decide whether the scope of the jurisdiction of the committals division satisfies the requirements of Article 5 § 4.

In conclusion, there has been a violation of Article 5 § 4.

IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL N° 4

56.The applicants complained of a violation of Article 4 of Protocol No. 4, which provides:

 "Collective expulsion of aliens is prohibited."

In their submission, the expression "collective expulsion" must be understood as meaning any "collective implementation of expulsion measures". The provision would become meaningless if a distinction were drawn between the prior decision and the execution of the measure, since the legislation of every member State now required a specific formal decision before expulsion, such that a distinction of that kind would mean that it would no longer be possible to challenge a collective expulsion and Article 4 of Protocol No. 4 would be deprived of all practical effect.

The applicants considered, in particular, that the orders for their expulsion reflected the authorities' determination to deal with the situation of a group of individuals, in this instance Roma from Slovakia, collectively. They submitted that there was evidence of that in certain official documents, including letters sent on 24 August 1999 by the Director-General of the Aliens Office to the Minister of the Interior and the Commissioner-General for Refugees and Stateless Persons, in which the Director-General had announced that requests for asylum by Slovakian nationals would be dealt with rapidly in order to send a clear signal to discourage other potential applicants. The applicants also referred to a "Note providing General Guidance on Overall Policy in Immigration Matters", which was approved on 1 October 1999 by the Cabinet and containing the following passage: "A plan for collective repatriation is currently under review, both to send a signal to the Slovakian authorities and to deport this large number of illegal immigrants whose presence can no longer be tolerated" (see paragraph 31 above). Likewise, on 23 December 1999, the Minister of the Interior had declared in response to a parliamentary question: "Owing to the large concentration of asylum seekers of Slovakian nationality in Ghent, arrangements have been made for their collective repatriation to Slovakia" (see paragraph 23 above).

In the applicants' submission, those elements revealed a general system intended to deal with groups of individuals collectively from the moment the decision to expel them was made until its execution. In that connection, it was significant that the process had been christened "Operation Golf" by the authorities. Accordingly, irrespective of the formal appearance of the decisions that had been produced, it could not be said that there had been "a reasonable and objective examination of the particular circumstances of each of the aliens forming the group" in the instant case.

57.In response to that complaint, the Government objected that the applicants had failed to challenge the decisions which they alleged constituted a violation, namely those taken on 29 September 1999, in the Conseil d'État, notably by way of an application for a stay under the extremely urgent procedure.

The Court notes that that remedy is the same as the remedy relied on by the Government in connection with the complaint under Article 13 taken together with Article 4 of Protocol No. 4. Consequently, the objection must be joined to the merits and examined with the complaint of a violation of those provisions.

58.As to the merits of the complaint of a violation of Article 4 of Protocol No. 4 taken alone, the Government referred to the Court's decision in the case of Andric v. Sweden (no. 45917/99, [Section 1] 23.02.99, unpublished), in which the complaint was declared inadmissible, in support of their submission that there was no collective expulsion when an alien's immigration status was individually and objectively examined in a way that allowed him to put forward his case against expulsion. Although the orders made on 29 September 1999 to leave the territory had replaced the earlier orders, both the Aliens Office and the Commissioner-General's Office for Refugees and Stateless Persons, an independent, impartial and quasi-judicial body, had afforded the applicants an opportunity to set out their cases. The decision concerning Mrs Conková comprised three pages of detailed reasoning typed in small characters and explaining why she was at no risk of treatment contrary to Article 3 of the Convention in her country of origin. As for Mr Conka, he had not even taken the trouble to attend his appointment with the Commissioner, despite receiving due notification.

Further consideration had been given to the aliens' cases at Ghent Police Station, since some asylum seekers whose applications had been refused were nevertheless allowed to walk free from the police station, notably on humanitarian grounds or for administrative reasons. The examination of some individual cases, including the Conkas', had even continued until the applicants were about to board the aircraft, since a social-security payment had been made for October to each head of household, calculated to the nearest Belgian franc by reference to the number of people in each family. In short, the requirements of Article 4 of Protocol No. 4 had been amply satisfied.

59.The Court reiterates its case-law whereby collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (see Andric v. Sweden, cited above). That does not however mean that where the latter condition is satisfied, the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4.

60.In the instant case, the applications for asylum made by the applicants were rejected in decisions of 3 March 1999 that were upheld on 18 June 1999. The decisions of 3 March 1999 contained reasons and were accompanied by an order made on the same day requiring the applicants to leave the territory. They were reached after an examination of each applicant's personal circumstances on the basis of their depositions. The decisions of 18 June 1999 were also based on reasons related to the personal circumstances of the applicants and referred to the order of 3 March 1999 to leave the territory, which had been stayed by the appeals under the urgent procedure.

61.The Court notes, however, that the detention and deportation orders in issue were made to enforce an order to leave the territory dated 29 September 1999; that order was 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 of 3 March and 18 June 1999. Admittedly, those decisions had also been accompanied by an order to leave the territory, but by itself, that order did not permit the applicants' arrest. The applicants' arrest was therefore ordered for the first time in a decision of 29 September 1999 on a legal basis unrelated to their requests for asylum, but nonetheless sufficient to entail the implementation of the impugned measures. In those circumstances and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed did not enable it to eliminate all doubt that the expulsion might have been collective.

62.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 (see paragraphs 30 and 31 above); 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 were couched in identical terms; fourthly, it was very difficult for the aliens to contact a lawyer; lastly, the asylum procedure had not been completed.

63.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 did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account.

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

V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

64.The applicants said that they had no remedy available to complain of the alleged violations of Article 3 of the Convention and Article 4 of Protocol No. 4 that satisfied the requirements of Article 13 of the Convention, which provides:

 "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

65.In the applicants' submission, the procedure before the Commissioner-General for Refugees and Stateless Persons did not offer the guarantees required by Article 13. Firstly, the alien concerned had no guarantee of being heard since, although that was the practice, it did not constitute a right. Secondly, he had no access to his case file, could not consult the record of notes taken at the hearing or demand that his observations be put on record. As regards the remedies available before the Conseil d'État, they were not effective for the purposes of Article 13, as they had no automatic suspensive effect. In expulsion cases, in which enforcement of the contested State measure produced irreversible consequences, the effectiveness of the remedy depended on its having suspensive effect, which was thus a requirement of Article 13 of the Convention.

66.In particular, as regards remedies in the Conseil d'État under the extremely urgent procedure, the applicants accepted that in practice the judgment of the Conseil d'État was delivered before execution of the deportation order, but they argued that the law afforded no guarantee of that and the administrative authority was perfectly entitled to execute the deportation order without waiting for the judgment. Further, the success rate of such applications was as low as 1.36%. It was also to be noted in passing that the Conseil d'État considered that aliens ceased to have an interest in pursuing the proceedings after leaving Belgian territory and it declined jurisdiction to quash or stay orders to leave the territory if they merely constituted a means of executing another decision, unless the challenge was based on new grounds, different from those relied on to contest the decision which the order to leave the territory sought to enforce.

67.The Government said that the effectiveness of the available remedies had to be determined as a whole, having regard to the fact that two categories of remedy existed under Belgium law and could be exercised successively and cumulatively against deportation orders made by the Aliens Office. One appeal lay to the Commissioner-General for Refugees and Stateless Persons, the other to the Conseil d'État.

68.The former was an independent and impartial quasi-judicial body, as the Court of Cassation had again recently confirmed in a judgment of 14 March 2001 (see paragraph 26 above). Appeals to the Commissioner had automatic suspensive effect and the procedure afforded several procedural guarantees. First, due reasons setting out all the relevant circumstances of the case had to be given in the Commissioner's decisions. The adversarial principle was observed in the procedure so that every decision in asylum cases had to be based on evidence and information of which the applicant for refugee status was aware, which was common knowledge or which, failing that, had been the subject of adversarial argument.

In the instant case, Mrs Conková had been heard at length by representatives of the Commissioner-General's Office, in the presence of an interpreter. She had not requested the assistance of a lawyer, but had been entitled to do so. Mr Conka had not even kept his appointment.

69.An appeal lay against the decision of the Commissioner to the Conseil d'État by way of an application for judicial review and a stay of execution under the ordinary or extremely urgent procedure. The applicants had not used the extremely urgent procedure to apply for a stay of the decisions of 18 June 1999. Nor had they used it when challenging the deportation orders of 29 September 1999, which had replaced those of 18 June 1999.

70.The Government accepted that appeals to the Conseil d'État had no automatic suspensive effect and that the authorities were entitled in law not to withhold executing a deportation order solely on the ground that an appeal to that court – even under the extremely urgent procedure – had been lodged. However, appeals to the Conseil d'État had in the past had automatic suspensive effect and that had very rapidly led to a glut of appeals being lodged as a delaying tactic, a state of affairs that had forced the legislature to cancel the automatic suspensive effect in 1991. However, in order to protect the effectiveness of the remedy before the Conseil d'État, the legislature had at the same time introduced the extremely urgent procedure, thus restoring a fair balance between two fundamental values of the Convention: the proper administration of justice and the conduct of proceedings within a reasonable time on the one hand, and effective judicial protection on the other.

71.The procedure for applying for a stay of execution under the extremely urgent procedure was effective both in practice and in law and accordingly satisfied the requirements of Article 13.

As a matter of law, the Court's case-law on the subject did not require available remedies to have suspensive effect automatically and as of right. On the contrary, the Jabari v. Turkey judgment of 11 July 2000 (no. 40035/98, § 50), for instance, showed that a mere power to issue a stay could suffice for the purposes of Article 13. The Conseil d'État had just such a power to issue a stay of execution under the extremely urgent procedure.

The procedure followed in such cases was very fast and applications had to be lodged before the period given to the alien to leave the territory had expired. In appropriate cases, the application could be dealt with in a single day. The president of the division could, by virtue of Article 16, paragraph 2 of the Royal Decree of 5 December 1991 laying down the urgent procedure in the Conseil d'État, issue a summons at any time requiring the parties to attend, even on bank holidays, and on a few hours' notice; he frequently did so in deportation cases. Furthermore, aliens were entitled by Article 33 of the Royal Decree to request the president to order provisional measures, including an injunction preventing deportation pending the outcome of the proceedings, under the extremely urgent procedure. Those procedures were available twenty-four hours a day and therefore afforded an effective remedy to check any inclination which the authorities might have to deport the alien before the Conseil d'État had delivered its judgment under the urgent procedure. In that connection, the Government referred to the Conseil d'État's practice direction on the procedure to be followed by duty officers at weekends; the direction made it clear that, if the authorities were not prepared to defer execution of the deportation order, the hearing was to be set down and the judgment delivered before the measure was executed.

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75.The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be "effective" in practice as well as in law. The "effectiveness" of a "remedy" within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the "authority" referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, many among other authorities, Kudla v. Poland [GC], no. 30210/96, § 157, ECHR 2000).

76.However, for Article 13 to be applicable, the complaint must also be arguable (see, mutatis mutandis, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1870, § 147). In the instant case, the complaints of a violation of Article 3 which the Court declared manifestly ill-founded on 13 March 2001 were not arguable. Accordingly, there has been no violation of Article 13 taken together with Article 3.

77.The complaint of a violation of Article 4 of Protocol No. 4 may, however, in the Court's view, be regarded as arguable.

78.The Court observes in that connection that the expulsions in issue were carried out on the basis of orders to leave the territory dated 29 September 1999 which, according to the Government, replaced those made on 3 March and 18 June 1999 and in respect of which a remedy was available in the Conseil d'État, in particular an application for a stay of execution under the extremely urgent procedure.

The applicants failed to use that remedy despite the fact that their counsel was informed of the events in issue and his clients' position at 10.30 p.m. on 1 October 1999 and considered that he was still acting for them. The applicants do not deny that the Conseil d'État may be regarded as a "national authority" within the meaning of Article 13, but argue that the remedy was not sufficiently effective to comply with that provision, as it did not produce any automatic suspensive effect. That issue must accordingly be examined.

79.The Court considers that the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible (see, mutatis mutandis, Jabari v. Turkey judgment of 11 July 2000, no. 40035/98, § 50 (unpublished)). Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (see the Chahal v. the United Kingdom judgment cited above, p. 1870, § 145).

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

The Court is bound to observe, however, that an application for a stay of execution under the ordinary procedure is one of the remedies which, according to the document setting out the Commissioner-General's decision of 18 June 1999, was available to the applicants to challenge that decision. As, according to that decision, the applicants had only five days in which to leave the national territory, an application for a stay under the ordinary procedure does not of itself have suspensive effect and the Conseil d'État has forty-five days in which to decide such applications (section 17 (4) of the consolidated Acts on the Conseil d'État), the mere fact that that application was mentioned as an available remedy was, to say the least, liable to confuse the applicants.

81.An application for a stay of execution under the extremely urgent procedure is not suspensive either. The Government stressed, however, that the president of the division may at any time – even on bank holidays and on a few hours' notice, as frequently occurred in deportation cases – summons the parties to attend so that the application can be considered and, if appropriate, an order made for a stay of the deportation order before its execution. It will be noted that the authorities are not legally bound to await the Conseil d'État's decision before executing a deportation order. It is for that reason that the Conseil d'État has, for example, issued a practice direction directing that on an application for a stay under the extremely urgent procedure the registrar shall, at the request of the judge, contact the Aliens Office to establish the date scheduled for the repatriation and to make arrangements regarding the procedure to be followed as a consequence. Two remarks need to be made about that system.

82.Firstly, it is not possible to exclude the risk that in a system where stays of execution must be applied for and are discretionary they may be refused wrongly, in particular if it was subsequently to transpire that the court ruling on the merits has nonetheless to quash a deportation order for failure to comply with the Convention, for instance, if the applicant would be subjected to ill-treatment in the country of destination or be part of a collective expulsion. In such cases, the remedy exercised by the applicant would not be sufficiently effective for the purposes of Article 13.

83.Secondly, even if the risk of error is in practice negligible – a point which the Court is unable to verify, in the absence of any reliable evidence – it should be noted that the requirements of Article 13, and of the other provisions of the Convention, take the form of a guarantee and not of a mere statement of intent or a practical arrangement. That is one of the consequences of the rule of law, one of the fundamental principles of a democratic society, which is inherent in all the Articles of the Convention (see, mutatis mutandis, Iatridis v. Greece, [GC], no. 31107/96, § 58, ECHR 1999-II).

However, it appears that the authorities are not required to defer execution of the deportation order while an application under the extremely urgent procedure is pending, not even for a minimum reasonable period to enable the Conseil d'État to decide the application. Further, the onus is in practice on the Conseil d'État to ascertain the authorities' intentions regarding the proposed expulsions and to act accordingly, but there does not appear to be any obligation on it to do so. Lastly, it is merely on the basis of internal directions that the registrar of the Conseil d'État, acting on the instructions of a judge, contacts the authorities for that purpose, and there is no indication of what the consequences might be should he omit to do so. Ultimately, the alien has no guarantee that the Conseil d'État and the authorities will comply in every case with that practice, that the Conseil d'État will deliver its decision, or even hear the case, before his expulsion, or that the authorities will allow a minimum reasonable period of grace.

Each of those factors makes the implementation of the remedy too uncertain to enable the requirements of Article 13 to be satisfied.

84.As to the overloading of the Conseil d'État's list and the risks of abuse of process, the Court considers that, as with Article 6 of the Convention, Article 13 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet its requirements (see, mutatis mutandis, the Süßmann v. Germany judgment of 16 September 1996, Reports 1996-IV, p. 1174, § 55). In that connection, the importance of Article 13 for preserving the subsidiary nature of the Convention system must be stressed (see, mutatis mutandis, Kudla v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

85.In conclusion, the applicants did not have a remedy available that satisfied the requirements of Article 13 to air their complaint under Article 4 of Protocol No. 4. Accordingly, there has been a violation of Article 13 of the Convention and the objection to the complaint of a violation of Article 4 of Protocol No. 4 (see paragraph 57 above) must be dismissed.

FOR THESE REASONS, THE COURT

1.Dismisses unanimously the Government's preliminary objection to the complaints under Article 5 §§ 1, 2 and 4 of the Convention of a failure to exhaust domestic remedies;

2.Holds unanimously that there has been a violation of Article 5 § 1 of the Convention;

3.Holds unanimously that there has been no violation of Article 5 § 2 of the Convention;

4.Holds unanimously that there has been a violation of Article 5 § 4 of the Convention;

5.Holds by four votes to three that there has been a violation of Article 4 of Protocol No. 4 to the Convention;

6.Holds unanimously that there has been no violation of Article 13 of the Convention taken together with Article 3;

7.Holds by four votes to three that there has been a violation of Article 13 of the Convention taken together with Protocol No. 4;

8.Holds by six votes to one

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:

(i)10,000 (ten thousand) euros in respect of non-pecuniary damage;

(ii)9,000 (nine thousand) euros in respect of costs and expenses;

(b) that simple interest at an annual rate of 7% shall be payable from the expiry of the above-mentioned three months until settlement; 

9.Dismisses unanimously the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 5 February 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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