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Title:Conka v. Belgium
Application No:51564/99
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:05-02-2002
Conclusion:Violation of article 5-1
No violation of article 5-2
Violation of article 5-4
Violation of article 13 jo. 3
Violation of article 13 jo. P4-4
Compensation awarded

(Press release) The applicants are Slovakian nationals of Romany origin. In November 1998 they left Slovakia for Belgium, where they requested political asylum on the ground that they had been violently assaulted on several occasions by skinheads in Slovakia. On 18 June 1999 the Commissioner-General for Refugees and Stateless Persons upheld a decision of the Minister of the Interior declaring their applications for asylum inadmissible and the applicants were required to leave the territory within five days. In 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 stated that their attendance was required to enable the files concerning their applications for asylum to be completed. At the police station the applicants were served with a fresh order to leave the territory and a decision for their removal to Slovakia and their detention for that purpose. On 5 October 1999 the applicants and some 70 other refugees of Romany origin whose requests for asylum had also been turned down were taken to Melsbroek military airport, and put on a plane for Slovakia.

Relying on Articles 5 and 13 of the Convention and Article 4 of Protocol No. 4, the applicants complained, in particular, about the circumstances of their arrest and expulsion to Slovakia.

The Court held that, even as regards aliens who were in breach of the immigration rules, 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 was not compatible with Article 5. Consequently, there had been a violation of Article 5(1).

The Court observed that on their arrival at the police station the applicants had been informed of the reasons for their arrest and of the available remedies. A Slovakian-speaking interpreter had also been present. Even though those measures by themselves were not in practice sufficient to allow the applicants to exercise certain remedies, the information thus furnished to them nonetheless satisfied the requirements of Article 5(2). Consequently, there had been no violation of that provision.

With regard to Article 5(4), the factor wchich was decisive in the eyes of the Court was that the applicants' lawyer had only been 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, the applicants' lawyer had been unable to lodge an appeal with the committals division. Consequently, there had been a violation of Article 5(4).

As regards Article 4 of Protocol No. 4, at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion had the procedure afforded sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account. In conclusion, there had been a violation of Article 4 of Protocol No 4.

As far as Article 13 was concerned, the Court, in short, held that a number of factors made the implementation of the remedy, i.e. an application for a stay of execution, under the circumstances too uncertain to enable the requirements of Article 13 to be satisfied. Therefore, the applicants had not had a remedy available that satisfied the requirements of Article 13 to air their complaint under Article 4 of Protocol No. 4. Accordingly, there had been a violation of Article 13 of the Convention.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 10,000 euros for non-pecuniary damage and 9,000 euros for legal costs and expenses.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)