Cases in which the Court found no violation of Article 4 of Protocol No. 4
THE LAW ... II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 69. The applicant complained of a violation of Article 4 of Protocol No. 4 to the Convention, which provides : “Collective expulsion of aliens is prohibited. ” 70. The Government contested this view. ... B. The merits 1. The parties ’ submissions ( a ) The Government 72. According to the Government, the complaint under Article 4 of Protocol No. 4 was devoid of purpose in so far as the applicant was still on French territory when he submitted the complaint. 73. The Government further claimed that the use by the French authorities of specific flights to transport a number of aliens to their countries of origin was based on practical considerations and could not be analysed as a practice of collective expulsion within the meaning of that provision. The introduction of such flights had been made necessary by the difficulty, and even impossibility, of obtaining seats on scheduled flights towards certain destinations, especially to countries to which there were few scheduled services from French airports. 74. The Government emphasised the legislative guarantees and the supervision exercised by the administrative courts over decisions to expel illegal immigrants, which were always examined on the basis of detailed individual circumstances, and particularly in the light of the alleged risks of a violation of Article 3 in the event of return to the country of origin. Thus, the administrative courts would have no choice but to set aside expulsion orders based on nationality or ethnic origin. 75. The Government considered that in the instant case the French authorities had complied with the Court ’ s case-law ( they referred to Andric v. Sweden ( dec .), no. 45917/99, 23 February 1999, and Čonka [ v. Belgium, no. 51564/99, ECHR 2002-I ] ) since no official statement announcing an intention on the part of the French authorities to conduct collective expulsions had preceded the introduction of reserved flights to Afghanistan and the applicant ’ s request had been responded to in an individualised and personal decision. When he was arrested on 21 September, and again on 14 December 2005, he was notified of a removal order issued against him on 14 December 2005, which concerned him personally and was a consequence of the direction to leave French territory issued to him on 5 July 2004, that is, more than a year previously. 76. Finally, the Government drew attention to the scale of the margin of appreciation enjoyed by the States in organising operations to expel aliens who were unlawfully present on French territory. ( b ) The applicant 77. The applicant submitted that in a large number of cases “grouped flights” were an expedient enabling the Government to return aliens to countries in which the major airlines no longer wished to land for security reasons. He noted that direct flights no longer existed to Somalia, Ethiopia and Afghanistan. In this connection, he stated that the Ministry of Foreign Affairs advised French nationals against travelling to Afghanistan. He also noted that since the “joint return operations” had proved excessively onerous, the police were governed by profitability objectives and were subject to considerable pressure when preparing such flights. 78. Contrary to what was argued by the Government, there was no effective individual and personalised examination of the risks in the event of return to the country of origin and French law provided no effective means of preventing the administrative authorities from carrying out collective expulsions. In this connection, the applicant emphasised the practical difficulties faced by a foreigner seeking to describe a risk of ill-treatment in the event of his or her removal from French territory. Furthermore, the administrative courts did not carry out a genuine individualised check of the lawfulness of the expulsion orders, since they merely validated the negative decisions issued by the OFPRA or the Refugee Appeals Board ... Finally, the administrative courts used the claim that an individualised removal order was issued in respect of every foreigner as a pretext for systematically dismissing arguments alleging a violation of Article 4 of Protocol No. 4. The individual decision, which was purely formal in nature, thus prevented acknowledgment of the collective nature of the removal. 79. In support of his allegations concerning the collective nature of the impugned expulsion order, the applicant submitted several witness statements asserting that the police had arrested a group of Afghans on 14 December 2005. On that occasion, the police officers had allegedly carried out a “selection” by asking the people in the Square de Verdun to specify their nationality, and then arresting only those who were Afghan. 80. The applicant further emphasised the importance of the circumstances preceding the “grouped flight” of 20 December 2005. He claimed that the flight in question had been planned : the Minister of the Interior had announced that it was imminent. Thus, as early as 27 July 2005, one day after a first Anglo-French “charter” flight expelling forty illegal Afghan immigrants, the Minister of the Interior had indicated that other flights were planned. The applicant annexed to his observations an article published on the website of Le Monde newspaper on 6 December 2005, quoting remarks made by the Minister of the Interior to the National Assembly: “ The Prime Minister and I are currently negotiating grouped flights with Iraq, Afghanistan and Somalia, in agreement with our English friends” in order to “return to their countries those people who believe that England is a new Eldorado and who end up in the Pale of Calais with no hope of finding either accommodation or employment. ” 2. The Court ’ s assessment 81. The Court draws attention to 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 in the group. Thus, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis ( see Andric, cited above ). 82. The Court further points out that, in order for a decision or measure favourable to the applicant to be sufficient to deprive him of his status as a victim, the national authorities must have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention ( see, among many other authorities, Lüdi v. Switzerland, 15 June 1992, § 34, Series A no. 238; Amuur v. France, 25 June 1996, § 36, Reports [ of Judgments and Decisions ] 1996 -III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000-IV). It is clear that these conditions were not fulfilled in the instant case, since it appears that the reason the applicant was not expelled on the collective flight of 20 December 2005 was because of the interim measure adopted by the Court on the basis of Rule 39 of its Rules of Court. The Government are therefore mistaken in alleging that the complaint under Article 4 of Protocol No. 4 has become devoid of purpose. 83. With regard to the nature of the examination conducted by the national authorities, the Court notes that, in the instant case, the applicant submitted two asylum requests to the French authorities, including one subsequent to the removal order issued against him. Those requests enabled him to set out the arguments against his expulsion to Afghanistan before the OFPRA and, in the context of the first request, the Refugee Appeals Board. In their decisions rejecting those requests, and particularly the request of 10 January 2006, the domestic authorities took account not only of the overall context in Afghanistan, but also of the applicant ’ s statements concerning his personal situation and the risks he would allegedly run in the event of a return to his country of origin. Accordingly, the Court notes that the applicant ’ s situation was indeed examined individually and provided sufficient grounds for the contested expulsion ( contrast, Čonka, cited above ). 84. In those circumstances, the Court considers that the applicant ’ s deportation from French territory would not amount to a violation of Article 4 of Protocol No. 4. ...
The Court held that there would be no violation of Article 4 of Protocol No. 4 to the Convention if the deportation decision were to be enforced. The French authorities, in their decision to refuse the asylum applications, had taken account of both the overall situation in Afghanistan and the applicant’s statements. The Court therefore found that the applicant’s case had been examined individually and provided sufficient grounds for his deportation. In this case the Court also held that there would be no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the applicant were to be deported.