Collective expulsion of aliens: the European Court of Human Rights (Strasbourg) as the island of hope in stormy times?

• Author: Rietiker, Daniel
• Position: Symposium on the Refugee Crisis

1. Introduction

   The European Court of Human Rights (hereafter: "ECtHR" or "Court") was established as a reaction to the atrocities committed in World War II. It decides the cases on the basis of the European Convention on Human Rights (hereafter: "ECHR"), adopted on 4 November 1950, (1) and has become over the decades the key player in the protection of human rights in Europe. It is sometimes referred to as the "Conscience of Europe" (2), an institution established by States which are, as the Preamble of the ECHR expresses, "likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law". Forty seven (47) Member States of the Council of Europe, the mother organization of the Court, are currently under its jurisdiction. (3)

   One of the cornerstones of the ECHR system is the right to individual application within the meaning of Article 34, according to which individuals can seek redress before the Court for violations of the rights set forth in the ECHR or the protocols thereto. (4) This direct access to an independent judicial body that is entitled to examine allegations of human rights abuses is unique in the world. Another reason for the Court's efficiency are the interim measures that the Court can impose on States Parties pending the resolution of a case in Strasbourg, in conformity with Rule 39 of the Rules of the Court. (5) This tool is almost exclusively applied in cases of expulsion or extradition and, therefore, very relevant in the cases examined in the present contribution. (6)

   Expulsion and extradition cases are among the most important and most frequent cases of the Court. Traditionally, the key provisions in situations of expulsion and extradition have been Articles 3 (prohibition of inhuman and degrading treatment) and 8 (respect for private and family life). The former protects foreign individuals, in particular asylum seekers, against their return to a State where they face a real risk of torture or ill-treatment. One of the landmark judgments was Soering v. the United Kingdom1 in which the applicant, a German national, was facing extradition from the United Kingdom to the United States for charges of murder. In the Court's view, having regard to the very long period of time spent on death row in [such] extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, the applicant's extradition to the US would have exposed him to a real risk of treatment going beyond the threshold set by Article 3. (8) The underlying logic of Article 8 in expulsion and extradition cases is to protect a foreign applicant against removal when he maintains family ties in the country of residence. (9) In addition, particular guaranties applicable exclusively in situations of removal of individuals from a State, but less important in practice than Articles 3 and 8, are Article 3 of Protocol No. 4 (Prohibition of expulsion of nationals) and Article 1 of Protocol No. 7 (Procedural safeguards relating to expulsion of aliens). It is important to mention that these protocols are far from being ratified by all the Member States of the Council of Europe. (10)

   The provision which will be examined in more detail in the present contribution is Article 4 of Protocol No. 4, protecting aliens against collective expulsion. Protocol No. 4 having been adopted already in 1963, (11) the ECHR has found the first breach of this guarantee only in 2002, in the case of Eonka v. Belgium, that will be examined below. (12) More recently, this provision has been invoked more often and the Court has concluded on several occasions that a State Party had committed collective expulsions in breach of Article 4 of Protocol No. 4. (13)

   The first chapter (I) will briefly explore the definition of "collective expulsion," its legal basis (Article 4 of Protocol No. 4) and summarize the preparatory work thereto. In the second chapter (II), the cases in which the ECtHR had to deal with traditional situations of collective expulsion will be examined. The third chapter (III) will explain the extension of the scope of Article 4 of Protocol No. 4 operated by the Court through its "effective" and "dynamic" interpretation in more recent cases. As a matter of fact, only thanks to this normative extension of this provision the ECtHR is able to deal with most of the recent cases involving mass migration, in particular asylum seekers and refugees arriving in Europe by sea. At the end of the section, a case that is currently pending before the Grand Chamber of the ECtHR will be summarized. The contribution will be wrapped up with some final observations.

2. THE PREPARATORY WORK AND THE FIRST CASE DECIDED BY THE FORMER COMMISSION

   The text initially proposed by the Consultative Assembly contained no reference to collective expulsion and dedicated Article 4 to the individual expulsions of aliens "lawfully residing in the territory of a High Contracting Party." (14) The Committee of Governmental Experts with instructions to study problems relating to the ECHR, in examining this draft from the Assembly, confirmed its intention to insert in the Protocol "a provision prohibiting the arbitrary expulsion of aliens." (15) Moreover, it inserted the prohibition of collective expulsion in Paragraph 3 of Article 4, which was initially worded as follows:

   "Decisions of expulsion shall only be taken in individual cases; collective expulsion shall not, in any circumstances, be permitted." (16)

   In the final version of Article 4, the part dealing with the guarantees against individual expulsions was removed and only the paragraph prohibiting collective expulsions remained: (17) "Collective expulsion is prohibited." (18)

   The provision concerning individual expulsions was subsequently taken up in Article 1 of Protocol No. 7, which reproduces in substance the same text initially proposed in the original draft of Article 4 of Protocol No. 4. (19) The remaining text of Article 4 of Protocol No. 4 is extremely short, maybe the shortest provision in the ECHR and the Protocols thereto. Moreover, it is safe to say that it derives from the wording of this provision that it embodies an absolute guarantee which is not subjected to restrictions, similar to Article 3 of the ECHR that prohibits inhuman and degrading treatment or punishment, including torture, in absolute terms. (20)

   As far as the term "expulsion" is concerned, the drafting history of Article 4 of Protocol No. 4 does not provide for clarification. The commentary on Article 3 of Protocol No. 4 (prohibition of expulsion of nationals, by means either of an individual or a collective measure), however, refers to this concept. Even though it was recognized that in its normal technical use, the term applied only to aliens, it was preferred to the word "exile," which could give rise to various problems of interpretation. According to the Committee of Experts, "the word 'expulsion' is to be taken here in the generic meaning, in current use (to drive away from a place)." (21)

   As has been pointed out above, until very recently the claims involving collective expulsion of aliens have all been declared inadmissible by the Court and before, by the former European Commission of Human Rights (hereafter: "Commission"). (22) The first decision in this domain dates back to 1975. It is noteworthy because the Commission gave a definition of "collective expulsion" that is still applied by the Court today:

   'Collective expulsion of aliens' means any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group. (23) This case was filed by a citizen of the Federal Republic of Germany, the director of "Project Children's Protection and Security International (CPSI)." He claimed that the envisaged repatriation of 199 Vietnamese children who have been received on the Danish island of Liv0 would amount to a breach of the prohibition of collective expulsion. (24) The Commission came to the conclusion that, since the respondent Government had allowed each case to be examined individually, no issue of collective expulsion arose. (25)

   To sum up this section, it can be observed that the preparatory work on Article 4 of Protocol No. 4 reveals the close link that exists between the prohibition of collective expulsion of aliens on the one hand, and the need for procedural safeguards and legitimate reasons that justify the individual expulsions of lawful resident aliens, on the other hand.

3. THE SITUATIONS AS CONCEIVED BY THE DRAFTERS OF ARTICLE 4 OF PROTOCOL NO. 4: THE COLLECTIVE EXPULSION OF ALIENS RESIDING LAWFULLY ON THE TERRITORY OF THE HOST STATE.

   Whereas a series of other cases has been declared inadmissible by the former Commission, (26) it was only in 2002 that the Court found a case well-founded under Article 4 of Protocol No. 4. It will be detailed in this section.

   1. Eonka v Belgium

      The first case in which the Court found a breach of the prohibition of collective expulsion was Eonka v. Belgium, delivered on 5th February 2002. (27)

      1. Facts

         The applicants were four Slovakian nationals of Romany origin, claiming that they had fled from Slovakia where they had allegedly been subjected to racist assaults by skinheads with the police refusing to intervene. (28) In November 1998 they arrived in Belgium, where they requested political asylum. (29) "On 3 March 1999 their applications for asylum were declared inadmissible." The decisions were accompanied by "an order to leave the territory within five days." (30) On 18 June 1999 the Commissioner-General's Office upheld the decision "refusing the applicants permission to remain" and stated that time had begun to run again for the purposes of the five-day time-limit. (31)

         "At the end of September...