Conka v. Belgium

Facts: The applicants, Slovakian nationals of Romani origin, sought political asylum in Belgium on the ground that they were victims of repeated violent assaults by skinheads in Slovakia. Belgian police sent a notice to the applicants and other Slovakian Romani families requiring their presence at the police station to "enable the files concerning their applications for asylum to be completed." There the applicants were served with a new order to leave Belgium, take to a holding centre, and five days later placed on a flight to Slovakia.

Art. 5(1) (right to liberty and security): violation

The wording of the notice to the applicants to appear at the police station was deliberately chosen to secure compliance of the largest number of attendees. Thus, the Court found a violation of Art. 5(1), stating, "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."

Art. 5(2) (right to be informed of the reasons for arrest): no violation

Any person arrested must be promptly informed "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." The promptness and content of such information is case specific.
Despite the fact that the measures provided were not alone "sufficient to allow the applicants to lodge an appeal with the committals division," the information provided to the applicants nonetheless satisfied the requirements of Article 5 § 2 of the Convention.

Art. 5(4) (right to partake in proceedings by which lawfulness of detention shall be decided): violation

The only remedy available to the applicants was an appeal to the committals division of the criminal court, whose jurisdiction is limited to the procedural lawfulness of detention, rather than the justification of the detention. Thus, the available remedy did not satisfy Art. 5(4) requirements.

The Court noted that information on available remedies given to the applicants was in tiny characters and in a foreign language. Only one interpreter had been available to assist the multiple Romani families and he did not accompany the families to the closed centre. Thus the applicants had little prospect of being able to contact a lawyer.

Art. 4 of Protocol 4 (prohibition of the collective expulsion of aliens): violation

The Court stated "whereby collective expulsion . . . 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 . . ." In view of the large number of persons of the same origin who suffered the same fate as the applicants, the government failed to eliminated doubt that the expulsion might have been collective. This was reinforced by the following factors: (1) prior to the applicants' deportation, the authorities concerned had announced there would be operations of that kind and given instructions to the relevant authority for their implementation; (2) all concerned aliens were required to attend the police station simultaneously; (3) the orders served requiring them to leave the territory and for their arrest had been couched in identical terms; (4) it was difficult for the aliens to contact a lawyer; and (5) the asylum procedure had not been completed.

The full text of the decision is available HERE.

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