EGMR

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

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) of the Convention 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 require 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 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, Bozano v. France, judgment of 18 December 1986, Series A no. 111, p. 23, § 54, and Chahal, 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.

41. The Court notes that, according to the Government, while the wording of the notice was admittedly unfortunate, as had indeed been publicly recognised by the Minister of the Interior (see paragraph 23 above), that did not suffice to vitiate the entire arrest procedure, or to warrant its being qualified as an abuse of power.

While the Court has reservations about the compatibility of such practices with Belgian law, particularly as the practice in the instant case was not reviewed by a competent national court, the Convention requires that any measure depriving an individual of his liberty must be compatible with the purpose of Article 5, namely to protect the individual from arbitrariness (see paragraph 39 above). Although the Court by no means excludes its being legitimate for the police to use stratagems in order, for instance, to counter criminal activities more effectively, acts whereby the authorities seek to gain the trust of asylum-seekers with a view to arresting and subsequently deporting them may be found to contravene the general principles stated or implicit in the Convention.

In that regard, there is every reason to consider that while the wording of the notice was "unfortunate", it was not the result of inadvertence; on the contrary, it was chosen deliberately in order to secure the compliance of the largest possible number of recipients. At the hearing, counsel for the Government referred in that connection to a "little ruse", which the authorities had knowingly used to ensure that the "collective repatriation" (see paragraph 23 above) they had decided to arrange was successful.

42. The Court reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision (see, mutatis mutandis, K.-F. v. Germany, judgment of 27 November 1997, Reports 1997-VII, p. 2975, § 70). In the Court's view, that requirement must also be reflected in the reliability of communications such as those sent to the applicants, irrespective of whether the recipients are lawfully present in the country or not. It follows that, even as regards overstayers, 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 is not compatible with Article 5.

43. That factor has a bearing on the issue to which the Court must now turn, namely the Government's preliminary objection, which it has decided to join to the merits. In that connection, the Court reiterates that by virtue of Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).

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 exercised. 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 Roma 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, Matthews v. the United Kingdom [GC], no. 24833/94, § 34, ECHR 1999-I). As regards the accessibility of a remedy within the meaning of 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, judgment of 28 October 1994, 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, first paragraph, point (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 Slovak-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 [...]

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 (cf. 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 Article 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 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 [...]

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, cited above). That does not mean, however, 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, first paragraph, point (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 does not enable it to eliminate all doubt that the expulsion might have been collective.

62. That doubt is 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 [...]

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, among many other authorities, Kudla v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

76. However, for Article 13 to be applicable, the complaint must also be arguable (see, mutatis mutandis, Chahal, cited above, 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 of the Convention taken in conjunction with Article 3.

77. But the complaint of a violation of Article 4 of Protocol No. 4 may, 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'Etat, 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'Etat 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, cited above, § 50). 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 Chahal, cited above, p. 1870, § 145).

80. In the instant case, the Conseil d'Etat 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, applications for a stay under the ordinary procedure do not of themselves have suspensive effect and the Conseil d'Etat has forty-five days in which to decide such applications (section 17(4) of the consolidated Acts on the Conseil d'Etat), 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 - summon 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'Etat's decision before executing a deportation order. It is for that reason that the Conseil d'Etat 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'Etat to decide the application. Furthermore, the onus is in practice on the Conseil d'Etat 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'Etat, 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'Etat and the authorities will comply in every case with that practice, that the Conseil d'Etat 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'Etat'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, 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, cited above, § 152).

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. [...]