10 September 2001
Expulsion procedures in conformity with human rights and enforced with respect for safety and dignity
Committee on Migration, Refugees and Demography
Rapporteur: Mrs Ruth-Gaby Vermot-Mangold, Switzerland, Socialist Group
Thirteen people died between 1991 and 2001. Ten died between September 1998 and May 2001 while being deported from Austria, Belgium, Germany, France and Switzerland. These deaths, which attracted considerable media attention, are sad examples of the worst that can happen during expulsion procedures and should not mask the fact that foreigners awaiting expulsion are subjected, in breach of the European Convention on Human Rights, to discrimination, racist verbal abuse, dangerous methods of restraint, and even violence and inhuman and degrading treatment.
Expulsion procedures are rarely open to public or official scrutiny in any of the Council of Europe’s member states. Police and security forces all too often play a predominant, or indeed exclusive, role. Access to waiting and holding areas is generally limited, if not impossible, for organisations providing humanitarian, legal, medical or psychological assistance to persons awaiting expulsion.
The Assembly welcomes with interest the legislative reform and proposed reform initiatives which certain states have taken in the last two years concerning the situation of foreigners awaiting expulsion. The Assembly is nevertheless concerned that the legal framework regulating expulsion often seems to be disregarded in practice and that such departures from prescribed procedure are not properly sanctioned, and fears that a policy of silence or tolerance is taking root in its member states. Urgent measures are required at European level, such as an in-depth study of this little-acknowledged issue, or the setting up of a composite group of experts to propose practical measures to ensure expulsion procedures are in conformance with human rights and are enforced with respect for personal safety and dignity.
I. Draft recommendation
1. The Assembly is greatly concerned at the number of deaths resulting from the methods used to enforce expulsion orders in Council of Europe member states. Ten people died between September 1998 and May 2001 while being deported from Austria, Belgium, Germany, France, Italy and Switzerland.
2. These deaths are sad examples of the worst that can happen during expulsion procedures. Amnesty International has, for at least the past seven years, been receiving regular complaints about the ill treatment of potential deportees. All organisations dealing with complaints report that the number received has risen sharply in the last two years, reflecting an increase in the number of expulsions and at the same time in the number of forced and violent expulsions.
3. The Assembly believes that the increase in the number of incidents during expulsions from Council of Europe member states shows that these are not isolated events. All too often, persons awaiting expulsion are subjected, in breach of the European Convention on Human Rights, to discrimination, racist verbal abuse, dangerous methods of restraint, and even violence and inhuman and degrading treatment. All too often, the officials responsible for enforcing expulsion orders resort to an unjustified, improper or even dangerous use of force. The European Committee for the Prevention of Torture (CPT) believes that there are clear risks of inhuman treatment in the deportation of foreigners; during the preparatory phase, during expulsion (flights and boats) and on arrival.
4. The Assembly is concerned at the predominant, or indeed exclusive, role of the police and security forces, which are often poorly trained, in enforcing expulsion orders. It can only deplore the fact that the involvement, at all stages of the procedure, of professionals in both psycho-social support and humanitarian aid, and of lawyers, judges and doctors, remains limited. The Assembly is also concerned at the inordinate responsibilities which states place directly or indirectly on carriers.
5. In this context, it is not surprising that it is difficult to gather reliable information on expulsion procedures. It is often only by chance that ill treatment suffered during deportation comes to light. Lack of resources and support account for the fact that very few people, on returning to their countries of origin, bring proceedings against those responsible for expelling them.
6. The Assembly is concerned that in all the member states of the Council of Europe expulsion procedures lack transparency. It is interested to note that some Council of Europe member states are looking into this area or have implemented reforms, however it is concerned that the legal frameworks for the enforcement of expulsion orders are often not adhered to in practice.
7. The Assembly believes that forced expulsion should only be used as a last resort, that it should be reserved for persons who put up clear and continued resistance and that it can be avoided if genuine efforts are made to provide deportees with personal and supervised assistance in preparing for their departure.
8. The Assembly insists that the Council of Europe’s fundamental values will be threatened if nothing is done to combat the present climate of hostility towards refugees, asylum seekers and immigrants, and to encourage respect for their safety and dignity in all circumstances.
9. It thanks the European Commissioner for Human Rights for having recently brought together the non-governmental organisations for a seminar on “human rights standards applying to the holding of foreigners wishing to enter a Council of Europe member state and to the enforcement of expulsion orders”, which gave him the opportunity to obtain valuable information on expulsion procedures.
10. The Assembly recalls and reaffirms its recent recommendations aimed at improving the protection and treatment of asylum seekers, namely Recommendation 1475 (2000) on the arrival of asylum seekers at European airports, Recommendation 1467 (2000) on clandestine immigration and the fight against traffickers, Recommendation 1440 (2000) on restrictions on asylum in the member states of the Council of Europe and the European Union, and Recommendation R (99) 12 of the Committee of Ministers on the return of rejected asylum seekers.
11. The Assembly recommends that the Committee of Ministers conduct an in-depth study, and follow it up with periodical reports, on the procedures and practices used in the Council of Europe’s members states, including central and eastern Europe, during the enforcement of legally decided expulsion orders, by gathering precise and detailed information on:
i. the relevant legal and regulatory frameworks in national laws, the direction and extent of existing and planned reforms;
ii. the practice put in place by the authorities responsible for enforcing expulsion orders and the directives which are the basis of this practice;
iii. the number of complaints, the results of enquiries and, where applicable, the legal and disciplinary convictions.
12. The Assembly also recommends that the Committee of Ministers set up a joint working party at European level (including, for example, representatives of governments, parliaments and relevant organisations, members of bodies responsible for carrying out expulsion orders, persons working in the health and psycho-social fields, pilots, judges and legal advisors) to draw up, in a pragmatic and human spirit, a code of good conduct which includes the following:
i. an exhaustive list of human rights standards applicable to foreigners being expelled and their safeguards;
ii. a list of minimum principles regarding the monitoring, supervision and support of potential deportees, with regard to their dignity and safety;
iii. guidelines on restraint techniques;
iv. statutes for members of escorts and liaison agents guaranteeing that the responsibility for expulsion procedures lies fully with the public authorities.
13. Finally, the Assembly recommends that the Committee of Ministers encourage member states:
i. to establish independent monitoring systems for expulsion procedures, for example by appointing observers, mediators or an ombudsman, and to conduct impartial and in-depth enquiries at all levels into allegations of ill-treatment;
ii. to ensure that all foreigners awaiting expulsion receive, under the aegis of a referee, supervision which is:
a. individual, through the assessment of the individual situation of each foreigner, covering not only his administrative and legal status, but also his anxieties concerning the expulsion and his state of health;
b. comprehensive, through the involvement of a multi-disciplinary group including, with respect for their ethical principles, doctors, psychologists, social workers, legal advisors, organisations offering legal or humanitarian assistance, particularly non-governmental organisations;
c. monitored at all stages of the expulsion procedure, ie during preparation for departure, in particular in detention areas and centres, during the journey and on repatriation;
iii. to develop systematic policies for voluntary or forced repatriation in partnership with the International Organization for Migration (IOM) or any other relevant body, in particular through the allocation of financial aid;
iv. to adapt without delay their legislation and practices regarding holding prior to expulsion, in order:
a. to limit detention in waiting or transit zones to a maximum of fifteen days;
b. to limit detention in police stations to the amount of time strictly necessary for any arrest and to separate foreigners awaiting expulsion from people being questioned for common law crimes;
c. to limit prison detention to those who represent a recognised danger to order or safety and to separate foreigners awaiting expulsion from those detained for common law crimes;
d. to avoid detaining foreigners awaiting expulsion in a prison environment, and in particular:
1. to put an end to detention in cells;
2. to allow access to fresh air and to private areas and to areas where foreigners can communicate with the outside world;
3. to not hinder contacts with the family and non-governmental organisations;
4. to guarantee access to means of communication with the outside world such as telephones and postal services;
5. to ensure that during detention, foreigners can work, in dignity and with proper remuneration, and take part in sporting and cultural activities;
6. to guarantee the right to free access to consultation and independent legal representation;
e. to guarantee, under regular supervision by the judge, the strict necessity and the proportionality of the use and continuation of detention for the enforcement of the deportation order, and to set the length of detention at a maximum of one month;
f. to favour alternatives to detention which place less restrictions on freedom, such as compulsory residence orders or other forms of supervision and monitoring, such as the obligation to register; and to set up open reception centres;
g. to ensure that detention centres are supervised by persons who are specially selected and trained in psycho-social support and to ensure the permanent, or at least regular, presence of “inter-cultural mediators”, interpreters, doctors, psychologists as well as legal protection by legal counsellors;
h. to take into account, in any decision to limit personal freedom, the needs of vulnerable groups, and in particular:
1. the principle of the unity of the family must be respected in all circumstances;
2. unaccompanied minors must be treated in accordance with their age, and must immediately be taken charge of by a judge for minors and have access to independent legal consultation and representation;
3. single women must be able to use separate facilities,
4. the elderly must have access to the medical care necessary for their age;
v. to ensure that expulsion orders are enforced by specially trained, plain clothed state representatives, not by private agents and avoid any traumatising treatment, especially towards vulnerable persons;
vi. to inform the destination state of the measures taken to ensure the expelled persons are not considered criminals;
vii. to set up a monitoring system in the destination country, managed by embassy personnel, with a view to ensuring that the expelled person is not subjected to human rights violations, considered as a criminal or threatened with blackmail or arbitrary detention;
viii. to adapt immediately their legislation and practices concerning the transportation of expelled foreigners in order:
a. to inform the deportee at least 36 hours in advance of the details of the journey, ie times, destination, means of transport and if applicable, escort;
b. to limit the use of escorts to cases of known resistance, to take careful account of all refusals to be escorted and to organise a prior meeting with members of the escort, if absolutely necessary;
c. to ensure that members of escorts are adequately trained, particularly in mediation and stress management and have linguistic and cultural knowledge;
d. to favour in all cases scheduled air transport and to ensure that the carrier and captain have been fully informed and have given their formal agreement, failing that to allow the presence on board of independent observers or to allow video recordings;
e. to allow also the presence of independent observers or to make video recordings of the moments leading up to departure, due to the possibility of threats or attacks to persuade the person to leave; the independent observers must be present on departure and arrival;
f. to systematically draw up certificates on the physical and mental health of the deportee, on departure and arrival;
g. to introduce into national law specific regulations which strictly forbid the following practices:
1. partial or total obstruction of the respiratory tract;
2. gagging with adhesive tape;
3. the use of poison gas or stun gas;
4. the administration of tranquillisers against the wishes of the person concerned or of medicines without medical direction;
5. any form of restraint other than handcuffs on the wrists;
6. immobilisation by handcuffs during the journey;
7. the wearing of masks or hoods by members of the escort;
8. the arbitrary or disproportionate use of force;
h. to ensure proportionality and respect for safety and human dignity in any other measures taken during the expulsion procedure, by taking account of the particular needs of vulnerable persons such as children, unaccompanied minors, single women and the elderly;
i. to ensure that deportees receive food and drink during the journey and that they can carry and recuperate their personal belongings;
ix. to introduce into law the legal guarantees necessary for persons whose rights are violated during an expulsion procedure to be able to effectively exercise their right to appeal, namely:
a. the possibility for the victim or any other person appointed by him to this effect, to appeal to the legal authorities, including, if appropriate, the diplomatic representations of the state to which he has been expelled;
b. the provision of complete information to all persons awaiting expulsion regarding the possibility of making an appeal and ways of doing so, information on the possible consequences of a refusal to co-operate and the means of restraint stipulated in national law;
c. the presence of the victim in the state which decided to expel him throughout the duration of the proceedings brought about by the appeal, that is to say,
1. the suspension of an expulsion procedure against a person still present in the state from which he is to be expelled;
2. the return of an expelled person to the state which expelled him.
II. Draft Order
1. While studying the report on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity, the Assembly noted with concern that persons declared inadmissible immediately on their arrival at the borders of the Council of Europe’s member states were deported a few hours after their arrival, as this deprives the person in question of the right to request protection and asylum.
2. The Assembly believes that this is a particularly summary procedure, which clearly does not allow states to fulfil all their obligations under the international law on refugees and human rights.
3. As a result, the Assembly asks its Committee on Legal Affairs and Human Rights and its Committee on Migration, Refugees and Demography to conduct an in-depth study into the conditions for determining the status of “inadmissible” in the Council of Europe’s member states.
III. Explanatory memorandum by Mrs Vermot-Mangold
1. Following the tragic death of Ms Semira Adamu from Niger at Brussels airport in September 1998, as a result of the methods used to enforce the expulsion order against her, the Committee on Migration, Refugees and Demography set about assessing the expulsion procedures employed in the Council of Europe’s member states, in order to ascertain, amongst other things, the extent to which they respect human dignity and human rights. Unfortunately, Semira Adamu’s death was not an isolated case. Since 1998, eight people have died while being deported, not to mention those who have committed suicide.1
2. The Rapporteur considers it intolerable that Europe should resort to force in response to the often desperate attempts of migrants to cross its borders. Violent refusal to board a plane bound for the “country of origin” is more a sign of panic and distress than of aggression. All too often, however, deportees are regarded and treated as criminals.
3. Information on expulsion procedures is still hard to come by and in spite of the reforms announced by various authorities following the deaths of deportees, unacceptable practices are often reported before, during and after repatriation.
4. The Rapporteur must stress that she has been unable to obtain relevant information on the situation of foreigners expelled from Central and Eastern Europe, principally due to the absence of non-governmental organisations at the borders of these states. However, this was identified as a real problem during a meeting between the European Commissioner for Human Rights and the ombudsmen of these countries. One case currently pending at the European Court of Human Rights concerning Bulgaria2 is proving that expulsion procedures there are fairly similar, in law and in practice, to those in Western Europe.
5. The number of people deported from certain countries is very high and is steadily increasing. As an indication, between 10 000 and 20 000 expulsions are carried out every year in Austria, Belgium, the Netherlands and Greece, between 30 000 and 40 000 in France and the United Kingdom, where the number was 30% higher in the first half of 2000 than in the first half of 1999 and is expected to increase further in 2001 and 20023, and up to 70 000 in Germany. It appears from the available information for Austria and the Netherlands that more than 10% of all expulsions are carried out by force4.
6. In view of the large and increasing number of persons expelled every day from Europe’s borders and airports, it is high time these procedures were made more transparent, with increased co-operation between the different parties involved and the introduction of a code of good conduct to ensure that expulsions, when they are necessary, are carried out with the utmost respect for the dignity and safety of the persons concerned. The guarantee of dignity is currently included either directly5 or indirectly in several international Conventions for the Protection of Human Rights. Furthermore, several national constitutions also mention this clause for the protection of human dignity among the essential rights of the person.
2. The concept of expulsion and some figures
7. For the purposes of this report, the concept of expulsion covers the various cases in which domestic law provides for the removal of foreigners. The concept of expulsion procedure covers all the facts and acts which stem from the expulsion order and, if applicable, up to the return of the foreigner to another country, whether his country of origin or a third country.
8. It includes measures to turn back foreigners on their arrival at the border, to escort foreigners to the border if they have entered illegally or to remove foreigners who have previously been admitted into the country. Accordingly, it concerns illegal immigrants, rejected asylum seekers, foreigners whose residence permit has expired and, in some cases specified by law, foreigners lawfully resident in the receiving state.
9. In most cases, a period of between 24 hours, one week and three months, varying from state to state, normally elapses between notification and enforcement of an expulsion order. During this time, the foreigners concerned should have the opportunity to arrange their own departure, possibly with the help of organisations such as the International Organization for Migration (IOM). If they do not take this opportunity, the next step is forced repatriation, which may be carried out using a vast array of restraint techniques.
10. Those persons returned directly to the border, the so-called “inadmissibles”, are given no opportunity to appeal. In such cases, a request for asylum is not considered in depth, the expulsion decision is carried out immediately and measures of restraint may therefore be applied immediately. In some states, persons have been repatriated within two or three hours of their arrival, often without having had the time to make a request for asylum, or even to see a legal advisor. In view of the often difficult and stressful nature of the journey, such a process seems both inadvisable for health reasons and unwise if resistance is to be avoided.
11. Furthermore, the Rapporteur questions the quality of a decision taken after such a summary procedure as regards the evaluation of the personal situation of the person in question. As this matter of decision-making and the situation of “inadmissibles” is not within the scope of this report, it should be the subject of an in-depth study for a special report.
12. Finally, it should be recalled that the aim of this report is not to prohibit expulsions, nor to discuss legally decided expulsion orders, which in international law remain the discretion of the states. This principle was recently confirmed by the European Court of Human Rights, which as a result removed the application of Article 6 of the Convention from expulsion decisions and procedures6. However, it is important to mention that the consequence of this decision is not to deprive foreigners of their rights as guaranteed by the Convention, in particular Articles 3 (prohibition of torture and inhuman and degrading treatment or punishment, 5 (right to liberty and security), 8 (right to respect for private and family life) and 14 (prohibition of discrimination), guaranteeing respect for the dignity and safety of the person.
3. Authorities responsible for forced repatriation and other actors
13. As a rule, issuing and enforcing expulsion orders is the task of the regional or federal authorities responsible for aliens, such as the Ministry of the Interior (eg General Directorate of the Aliens Bureau in Belgium, Migration and Aliens Directorate in Croatia, Immigration Service in the United Kingdom), the Ministry of Public Order (eg State Security Division in Greece), the Ministry of Justice (eg Immigration and Naturalisation Department in the Netherlands), the prefecture (Aliens Bureau) in France, or the cantons in Switzerland (assisted, since 1999, by a specialised division of the Federal Office for Refugees with responsibility for repatriation). In some cases, for example in the Netherlands, the Ministry of Foreign Affairs also plays a significant role in assessing the safety situation in other countries.
14. In concrete terms, the preparation and enforcement of expulsion orders are the responsibility of the law-enforcement agencies, ie the police or the gendarmerie. They are generally responsible for the supervision of the detention centres and systematically for escorting deportees. In some states, specialist departments are responsible, such as the border police (Bundesgrenzschutz (BGS) in Germany, Police de l’Air et des Frontières (PAF) in France) or the immigration department (in the Netherlands and Greece). Austria even goes so far as to use its special security service, the WEGA (Wiener Einsatztruppe Alarmabteilung)7, which consists of anti-terrorist and anti-riot units. Switzerland has similar arrangements in the event of “Level 3” expulsions8. In the United Kingdom, the Immigration Service is sometimes assisted by private security firms. 9
15. Of course, some European states arrange special training for officers responsible for escorting foreigners. In Belgium, gendarmes are required to complete a six-month course before being assigned to border control. Since 1999, specific training courses have been available for prospective “border police officers” and “escort officers”. In Austria and Germany, officials in charge of expulsion are given special training in a number of areas, such as the legal framework, basic psychology, stress management, conflict mediation and first aid. They are then taught how to use restraint techniques to keep deportees calm. British Immigration Service officials have rejected proposals for training in this area10. This training is unfortunately too random. Furthermore, it seems that no specific training is provided for supervising officers at holding centres, nor for the other officials involved.
16. The presence of doctors or other health professionals during expulsion procedures appears little more than a formality. In Austria, a systematic medical examination is compulsory at least 24 hours before departure. In France, deportees are legally entitled to request medical assistance; in practice, however, police officers often refuse such requests. Switzerland has also introduced a procedure whereby police officers are required to obtain a medical certificate before proceeding with forced repatriation. However, the doctor who examined Khaled Abuzarifeh failed to identify a nasal septum defect which made it dangerous to block the deportee’s respiratory tract. Likewise, the German doctor who administered a tranquilliser to Kola Bankole failed to notice that the deportee suffered from cardiac insufficiency. A Swiss doctor at Favra prison described the improper and inappropriate use of medical certificates by the police11. Under these conditions, a number of doctors’ associations, particularly in Germany, Switzerland and Belgium, have objected to their members’ involvement in procedures of this kind.
17. Scarcely any professionals are on hand to provide psychosocial support during expulsion procedures. Belgium is the only country to report that assistance of this nature has, since 1999, been provided prior to departure and, in some cases, during the journey itself, but this practice is still not widespread. In Germany, the presence of social workers and psychologists in holding centres only was considered negligible. In France, since a decree of 19 March 2001, the Office of International Migrations, a governmental agency, has become responsible for receiving, informing and providing moral and psychological support to deportees, and for preparing for departure. At the same time, the presence in some holding centres of Ministry of Justice officials, who are mediators, allows certain tensions to be dissolved.
18. In Switzerland, a draft law called the “Passengers” project12 is currently looking into the possibility of introducing professional staff to escort people to the border. There have been proposals to replace the cantonal gendarmes by specially trained members of a professional, independent organisation at the federal rather than cantonal level. However, for constitutional reasons of sharing responsibility between the confederation and the cantons, this alternative plan was abandoned. The “Passengers II” proposal aims to establish a common pool of security agents who are psychologically trained to manage expulsion procedures13.
19. Likewise, in the Netherlands, a 1999 project proposed ensuring that the IOM and other relevant organisations, such as Central Relief for Refugees, were more closely involved in the expulsion procedure through the signing of “expulsion contracts”. Expulsions would be carried out by specialist regional teams comprising representatives of different ministerial departments, under the authority of a national co-ordinator14.
20. The non-governmental organisations are involved in these procedures to a different extent in each state. In Italy, the Red Cross manages holding centres. Other non-governmental organisations were offered the opportunity to become involved in running these centres but they refused, preferring to limit themselves to visits15. In France, a 2001 decree confirmed the presence of one NGO, Cimade, in holding centres, made it responsible for allowing foreigners to exercise their rights and also gave it the role of witness. However, until now, those concerned were often expelled before they had the chance to use the NGO’s services. In Switzerland, as part of the Passengers project, some people proposed giving the responsibility for enforcing expulsion orders to a humanitarian NGO such as Amnesty International or the Swiss Refugee Aid Organisation16Â . It is not certain whether non-governmental organisations would accept this task.
21. Most often, non-governmental organisations remain confined to an observer role, and their right of access to foreigners awaiting expulsion remains strictly monitored. It is particularly rare for them to have the right to make unexpected visits. The Rapporteur believes that this observation and monitoring role is essential and should be made permanent. In this regard, the Rapporteur has noted that the recent reforms carried out in some states have been in this direction, such as the setting up of independent visiting committees in the United Kingdom or escort by a doctor or independent observer during the journey in Belgium17. In general, the first increases in the possibilities for foreigners to visit elected representatives, magistrates and non-governmental organisations are encouraging, but still not enough to lead to a considerable improvement in the treatment of foreigners.
22. In practice, the police and security services play a predominant role in all Council of Europe member states, and this surely has an impact on the conduct of expulsion procedures and their frequent degeneration into violence, particularly when officials have not received adequate training.
4. Methods of restraint, incidents and accidents
23. Bearing in mind the methods of restraint employed during expulsions, the Rapporteur is convinced that the incidents and accidents that have occurred during such procedures in the Council of Europe’s member states are not isolated events. The use of violence during expulsions, in breach of Article 3 of the European Convention on Human Rights is plainly all too frequent. Voluntary associations no longer have any hesitation in denouncing the “institutionalisation” of violence through increasingly stringent laws which, while claiming to restrict unacceptable practices, actually authorise them.
24. Unfortunately, only extreme cases, for example when somebody dies while being deported, attract any public or media attention:
– in 1991, Arumugan Kanapathipillai died in an aeroplane from Roissy airport, having been strapped to his seat, with his hands and feet bound and his mouth gagged using a crepe bandage;
– in 1993, Joy Gardner died in London after two police officers and an immigration officer arrested her at her home with a view to her forced repatriation, handcuffed her, immobilised her with a leather belt and gagged her with four metres of adhesive tape;
– in 1994, Kola Bankole died after being injected with tranquillisers while gagged and tied up like a parcel during his expulsion from Germany;
– in 1998, Asan Asanov, who was seriously ill, died while being deported from Germany;
– in 1998, Semira Adamu was suffocated to death using the “cushion technique” while being deported from Belgium;
– in 1999, Marcus Omofuma died on the flight from Austria to Bulgaria, having been taped to his seat, with his hands and feet bound and his mouth gagged using adhesive strips;
– in 1999, Khaled Abuzarifeh died in a lift at Kloten airport, having been bound and gagged;
– in 1999, Aamir Ageeb died, having had his hands and feet bound and a motorcycle helmet placed on his head, which BGS officers held forcibly between his knees;
– in 1999, Moshen Sliti died when he was not given medical care while waiting to be deported at the holding centre in Arenc, Marseille;
– in 1999, Mohamed Ben Said died in a holding centre in Rome while awaiting expulsion. He was a drug addict, and was given a powerful tranquilliser which was known to be incompatible with heroin;
– in 2000, Richard Ibewke died at a holding centre in Vienna, having been beaten by police officers during his arrest, according to relatives;
– in 2000, Xhevdet Ferri died as a result of medical neglect shortly after a failed attempt to escape from detention centre 127-bis in Belgium;
– in 2001, Samson Chukwu died in a Swiss detention centre in the middle of the night, after being abruptly woken to be taken to the airport and expelled; he resisted and was immobilised then handcuffed with his face to the ground and his hands behind his back.
25. These tragic events cannot be regarded as accidents when one considers the methods of restraint used during expulsion procedures. The Working Group of intergovernmental experts on human rights of migrants of the Economic and Social Council of the United Nations has recently acknowledged the fact that human rights are violated during identification, search and detention of potential returnees.18
26. All states provide for the possibility of detaining foreigners awaiting expulsion, according to procedures outside the scope of ordinary law. For some years, this trend has been increasing. This form of detention is an administrative measure justified by the need to prepare for deportation; during this period, the relevant authorities collect the necessary travel and administrative documents. In this respect, governments claim that detention is a more efficient means of enforcing expulsion orders, especially in relation to two types of person: those seeking to avoid expulsion and those without any legal identity papers (who can therefore co-operate in establishing their identity). Such detention of foreigners is explicitly stipulated in Article 5 (1) (f) of the European Convention on Human Rights, concerning “the lawful arrest or detention of a person against whom action is being taken with a view to deportation”. into the country or of a person against whom action is being taken with a view to deportation or
27. According to the expert Elspeth Guild19, foreigners held in detention are actually expelled more quickly than other foreigners. In her view, this is due to administrative considerations: the need to release space in detention centres and the cost of detention. It is true that at the Arenc centre in Marseilles, expulsion takes place on average less than three days after the start of detention.20
28. Periods of detention vary greatly between states and are tending to become longer. In Italy, they are currently limited to a maximum of twenty days, in France twelve days, but may be prolonged by court order. Some French authorities complain that this period is too short and is one of the main obstacles to carrying out expulsions21. The statutory maximum detention period in Spain is forty days. In Switzerland, it normally lasts between one week and a maximum of three months, but may be extended to nine months. In practice, before the Federal Court took action in 1999, it sometimes lasted for a year22. Various means of support are available for those who accept voluntary repatriation23. In Germany, detention lasts for four weeks in principle, but can extend to eighteen months in extreme cases, and in Belgium it lasts between five and eight months24. There are no limits in the United Kingdom. Statistics show that 16% of foreigners are detained for less than one month, 38% from two to six months, 23% from six months to a year and the remaining 7% for more than a year25.
29. Detention is normally reviewed by the courts, in accordance with the provisions of the European Convention on Human Rights. In France, this takes place after 48 hours. In practice, however, where detention is concerned, “judges have become the police’s auxiliaries”, according to the Paris state prosecutor, and rarely set aside police decisions26. Recently, however, some judges have considered that detention could not be justified by the standard reason of the impossibility of immediate expulsion27. In Switzerland, judges intervene after 96 hours to assess whether detention is lawful; countless police abuses have come to light as a result of this process. On many occasions, the Federal Court has ordered detainees to be freed, stressing the need for proportionality and for detention to be subject to the material possibility of deporting the person28. In practice, however, the judge does not always have the opportunity to reach a decision, and non-governmental organisations regret the fact that many foreigners who have been held in detention are deported before appearing in court.
30. It is important to note that unlike national courts, European jurisprudence believes that detention should not be indefinite. It is legitimate only as far as efforts are made to carry out the deportation quickly and it ceases to be so if deportation is not carried out within a reasonable period. In this respect, the statistical difference in Italy between actual expulsions and the number of foreigners in detention suggests that some of these detentions do not respect these conditions. The small number of cases in which detention was set aside by a magistrate29 shows that the intervention of the authorities is more a formality than a practice.
31. In these conditions, the Rapporteur concludes that there is often an improper use of detention, which in view of the conditions of detention seems to me completely unacceptable.
32. In fact, foreigners are generally held in special centres under police supervision, which do not belong to the prison system and sometimes have no legal foundations. Living conditions in these centres are often deplorable and fail to respect detainees’ dignity: detention in cells, overcrowding, insufficient mattresses, no access to fresh air, poor hygiene and sanitary conditions. The Rapporteur refers to the condemnation of Greece by the European Court of Human Rights for the violation of Article 330 to recall that states are obliged to guarantee decent living conditions for detainees.
33. Some are detained immediately in prisons or police stations. As the Committee for the Prevention of Torture has often stated, potential deportees are not criminals and should not be kept in prison-like conditions. On the contrary, specific centres should be created which offer material conditions and regulations adapted to their legal status and which are staffed by officials who have the appropriate qualifications31.
34. There is often a climate of insecurity in these places, due among other things to the lack of information, the permanent threat of deportation and disciplinary regulations which are often strict and are completely incompatible with the development of mutual trust. All too often, internal regulations are not accessible to detainees and do not respect ministerial directives.
35. Above all, however, allegations of ill-treatment by the police are frequent among detainees. As well as beatings, mention should be made of the man in a cell in a German waiting area who was handcuffed and made to lie on a table for three hours with a wet T-shirt in his mouth32. The abundance of precise, concurring first-hand statements leaves little room for doubt. After visiting Frankfurt-am-Main airport, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) expressed serious concern at the use of force by border police (Bundesgrenzschutz - BGS) officers against asylum seekers33. The French association Anafé34 is alarmed by an upsurge in allegations of police brutality and claims to have received implicit confirmation from the officers concerned. Amnesty International has also drawn attention to the ill treatment of foreigners detained in Germany, France, Belgium, Switzerland and Austria.
36. The Rapporteur hopes that the new regulations concerning the holding of foreigners awaiting expulsion, adopted in France, the United Kingdom, the Netherlands and Belgium, will be strictly enforced in order to put an end to these practices, which are unfit for our democracies. The Rapporteur welcomes a Dutch initiative at the King Willem II detention centre, where foreigners work part-time and can receive training or take part in sporting or cultural activities, and she would like to see this copied elsewhere35.
b. Escorts and restraint techniques used during the journey
37. Departures are usually unexpected, and this causes resistance and fear on the part of the deportee. Deportees are therefore placed under escort while travelling, in order to stifle their resistance and avoid the risk of self-mutilation. Escorts generally comprise between two and four people per deportee; their job is to keep deportees quiet and, if necessary, prevent them from moving. The presence of the escort is often enough to create additional fear. The fact that the deportee arrives surrounded by men in uniform and restrained can create problems in the destination state, either because this state considers emigration a crime or simply because the deportee looks like a criminal.
38. In fact, escorts use a range of particularly humiliating restraint techniques, the mains ones being:
– the administration of sedatives, tranquillisers and other drugs, either orally without the deportee’s knowledge or by injection. The French police have even gone so far as to use chloroform;
– gagging using adhesive strips or other objects (such as cushions, socks etc.), to prevent deportees from shouting or biting, a practice which the CPT has described as extremely dangerous. The Swiss police have circumvented this restriction by placing tubes inside the gags to allow deportees to breathe;
– gagging using motorcycle helmets or foam boxing helmets with a protective chin strap to keep the jaws shut and a velcro strip across the mouth;
– handcuffs, belts, straitjackets and other means of preventing any form of movement; Amnesty International described the technique of the “trussed up pig”, which consists of tying the ankles and wrists together behind the back and carrying foreigners by their restraints36;
– strapping deportees into a wheelchair and taking them to their seat, to which they are again strapped (a technique used in Switzerland), meaning they are unable to use the toilet and have to use geriatric nappies.
39. Switzerland has devised a three-tier scale of restraint techniques; while level 2 allows deportees to be handcuffed and escorted by two police officers, level 3 permits the use of all the techniques listed above and an escort of four police officers, who may be masked37. It is normally used when a previous expulsion attempt has failed. The use of such violence prompted the head of the Neuchâtel police force to inform the State Council (cantonal government) that he was unwilling for his “officers to compromise themselves by breaching human rights” and to issue an internal memorandum in January 2000 prohibiting level-3 expulsion procedures. His example was followed by the Basle police force38.
40. Certainly, the tragic consequences of these methods have led to reforms. Austria, the United Kingdom, Switzerland, France, Belgium and Germany have banned the use of certain techniques, in particular gags, and have placed restrictions on others. However, such techniques are still being used in these countries. In its response to the CPT, the Belgian government stated that two reports drawn up during expulsions still mentioned the use of gags39. On 21 May 2001, the prosecutor in Klagenfurt, Austria, considered that the use of a gag throughout a twelve-hour flight did not constitute inhuman treatment40.
41. In addition, certain more common restraint techniques present a real risk of postural asphyxiation; they can be particularly dangerous when added to the elements of panic and surprise or when used together. The Rapporteur believes that there should be specific directives on these methods and that officials should receive the appropriate training.
42. In general, the abuses committed by members of escorts are shocking, whether they involve the use of prohibited techniques or the inflicting of various forms of physical violence on deportees, even when no resistance is offered. Deportees are dragged by their arms, feet or hair, hit with truncheons, and sometimes strangled. It is clear from a range of first-hand accounts, for example by passengers, crew members and non-governmental organisations, that ill-treatment is common during expulsions. Doctors’ medical certificates describe the injuries which occur, including bruises, sprains and sometimes strangulation41.
43. For the last seven years, Amnesty International has been receiving reports and complaints concerning the mistreatment of deportees at Europe’s borders, and has noted a significant increase in the number of reports in the last two years – which also reflects an increase in the number of expulsions42. The organisation believes the actual number of cases to be well in excess of the number reported, as many instances are never brought to light.
44. The Rapporteur considers that the proliferation of passenger complaints and the refusal of French, Belgian, German and Swiss aircrew trade unions to assist in deporting people without their consent are a telling indictment of the situation. The Rapporteur notes with satisfaction that more and more people are denouncing the use of brutality during expulsion procedures, including people, such as doctors, who are involved in the procedures, and politicians.
45. For example, at Roissy airport on 7 January 2000, while one person was held by the legs and shoulders by two police officers and repeatedly kneed in the back by other officers, and three police officers dragged a semi-naked woman by the hair while a fourth beat her with a truncheon, only the intervention of a European MP, alerted by the shouting, prevented a third woman from suffering a similar fate43. Meanwhile, a Belgian MP submitted a film about the mistreatment suffered by Matthew Sellu, from Sierra Leone, during his expulsion to Senegal and a medical certificate for use as evidence in his case before the Belgian courts44.
46. On 14 March 2001 an official of the French Ministry of Foreign Affairs on duty in the waiting area at Roissy airport, acting in compliance with a legal obligation to which all French civil servants are subject, made the first official complaint to the state prosecutor concerning insults and blows rained on a young woman from the Democratic Republic of Congo following her refusal to board a plane to Douala45.
5. Deportation by air46
47. As a rule, forced expulsion is carried out by air, on commercial flights and this method should be preferred in all cases, as it is open to public scrutiny.
48. The responsibility for the journey and the costs incurred lie in principle with the state which gives the expulsion order. However, under national aviation legislation and ICAO47 international regulations, the captain is responsible for safety, discipline and order on board. Accordingly, it is the captain’s duty to ensure that everything is in order for the flight; he or she is empowered to order any person who is likely to jeopardise safety, discipline or order on board the plane to disembark. The Tokyo Convention48 also provides that the captain may impose any reasonable and necessary measures of restraint on persons who have committed, or are likely to commit, a criminal offence or an act that jeopardises safety and order on board. In principle, then, escorts are subject to the authority of the captain, from whom permission for the use of restraint must be obtained.
49. There is, however, one exception to the principle of the responsibility of the state, included in the Schengen Convention and in accordance with ICAO rules49. In fact, most states oblige airlines to return “inadmissibles”, those to whom access to the country has been refused, at their own charge, either to their country of origin or to the transit country, under threat of fines. In this case, it is also the responsibility of the carrier to provide an escort if necessary and to use its own security officers, at least in principle.
50. Immigration services and/or the police are in close contact with airlines and arrange regular meetings. There are several agreements between public authorities and airlines stipulating the conditions under which deportees are to be allowed on board, such as the number allowed on the same flight, the need for an escort and the powers granted to the escort. It should be recognised that expulsions are often seen as a significant economic factor for airlines, as KLM has admitted50.
51. Such provisions and agreements sometimes mean that the airlines bear an extreme burden of responsibility, which is clearly not within their competence. The European Court of Human Rights severely criticised the eagerness of public authorities to pass off to others their responsibility for a little Zairian girl who was to be deported51.
52. As a result, airline officials, in particular captains, are seen as arbiters of immigration policy or as the “objective allies” of the police or gendarmerie. Pressure is brought to bear on them by the authorities which order expulsions, those responsible for carrying them out, the airlines themselves and passengers.
53. This confusion of responsibilities has had an effect on the increase in incidents occurring during expulsions on scheduled flights. Pressure from deportees’ support associations and objections from passengers often lead to flights being delayed and sometimes cancelled. Passengers expressing support for deportees are threatened by the police escort and the captain, who in some cases orders them off the aircraft. Air France reported 116 incidents of this kind between November 1997 and May 199852.
54. Finally, an increasing number of flight personnel are refusing to carry persons who have been forced to board against their will, although some still show little concern. For example, on 9 February 2000, an Air France pilot refused to carry a man to Bamako who had been beaten, had his hands and feet bound and was gagged and taped to his seat; the Air France management subsequently decided to replace the pilot with a more compliant one at the last minute53. Belgian and German aircrew trade unions instructed their members to systematically require the agreement of the deportee and to refuse to carry persons against their will54. These events have also caused some airlines to react, even if their motives are more commercial than humanitarian. For instance, Swissair no longer carries level-3 deportees. In 1998, Air France and Air Afrique suspended expulsions to Mali, and subsequently limited the number carried out.
55. In these circumstances, more and more voices are being raised in Ministries and among aircrews against expulsions by scheduled flights. States are finding alternatives.
56. In most cases, this has meant using charter flights (Germany, Austria, the United Kingdom, Belgium, Switzerland and the Netherlands). Some states have arranged joint flights to the same destination. In Switzerland, since the refusal of Swissair to carry level-3 deportees, a lucrative commerce has developed and become increasingly competitive among small airlines, which set on charter flights such as air taxis at the request of the BFF55, the Federal administration for refugees, whatever the destination. These expulsions, which are already being called “level-4 expulsions”, allow the use of any kind of restraint technique without the risk of reaction56. Belgium is even said to have used cargo planes, on the pretext that the deportee had arrived in this way57. Spain and Belgium also provide for transport by military aircraft.
57. In some states, people are to be deported by boat. Indeed, the French Minister of the Interior has explicitly suggested that prefects give preference, where possible, to sea transport so as to pre-empt refusals to board. The United Kingdom has seen the interest of expelling people by ship, and has used this method after several failed attempts at expulsion by air58. Spain expelled several Moroccans by cargo ship without any regard to their safety or dignity; they were locked up and handcuffed in a police van in the cargo hold.59
58. When these alternative means of transport are used, escorts are free to mistreat foreigners expelled in secret, with no witnesses present. This is why the Rapporteur considers that is not desirable to prohibit expulsions by scheduled flight. In order to answer the concerns expressed by flight personnel, mainly concerning safety, it is necessary above all for states to assume their full responsibility for the transport of a deportee, which it decides is compulsory.
6. Expulsion: towards what destination?
59. Although expulsion is, as governments maintain, a necessary instrument of any immigration policy, there is still a need to ensure that destination countries allow deportees to enter their territory and do not mistreat them. It is important to remember that Article 33 on the prohibition of expulsion or return of the Convention relating to the Status of Refugees of 28 July 195160 and the jurisprudence of the European Court of Human Rights61, indicate that a state is to all extents and purposes responsible for the situation of a foreigner on his return to another state. States have a real responsibility to ensure that the persons they expel are treated with respect and dignity in the country of destination. On 30 May 1994, however, Kuldeep Singh, an Indian national who had been deported from Germany, was shot dead by police at New Delhi airport62. It would appear that governments nowadays attach more importance to physically removing these people from their own territory than to their situation in the destination country.
60. The Rapporteur is concerned that some people are being deported to war-torn regions. In 1999, Germany, the Netherlands and the United Kingdom, and in 2000 Switzerland had no hesitation in sending or attempting to send63 people back to the Democratic Republic of Congo64, while Belgium returned people to Sierra Leone and Liberia65. The Rapporteur has also received allegations that the Swiss and German authorities returned deportees to Chechnya and Pakistan66.
61. It is generally important that, before expelling someone, states should make sure that the destination country will admit the person in question and, in particular, that the relevant authorities have all the necessary identity documents at their disposal. All too often, deportees find that when they reach their destination, the process is far from over.
62. For example, Germany sent fifteen rejected asylum seekers to Guinea in March 1999; when they arrived, they were sent back to Germany by the local authorities because their identity papers were not in order67. In 1997, the Netherlands authorities twice tried to deport a Liberian to Nigeria, where he was refused permission to enter the country; he was subsequently left on the streets as an illegal immigrant in the Netherlands.
63. In some cases foreigners who are refused permission to enter the state to which they are deported are held in detention there before being sent back again. In May 1998, a Palestinian refugee was deported by the Netherlands to Lebanon under escort after spending a month in detention; at the Lebanese border, he was arrested by the local authorities and detained for questioning for three days. When it emerged that his identity papers did not match the documents issued by the Netherlands, he was sent back to the Netherlands and detained again until December 1998 before being expelled for good68.
64. Due to a readmission agreement which includes favourable economic compensation arrangements, France deports North Africans, regardless of their nationality, to Algeria, where they are held in prison for several weeks before being returned by boat to France69. Similarly, in 1996, Spain deported Africans of various nationalities to Guinea-Bissau, where they were detained, one of them being shot dead by the local police70. The European Committee for the Prevention of Torture noted that Belgium had in the past sent foreigners to Africa, where they were left in the hands of a private company whose job was to verify their identity and provide them with the travel documents required for them to return to their countries of origin71.
65. Similarly, the Federal Office for Refugees in Switzerland sent rejected asylum seekers from various West African countries first to Ghana, then to Ivory Coast without having been able first to establish their exact identity. In the receiving country the expulsion procedure is, in principle, placed under the supervision of a lawyer from the Swiss embassy. In practice, however, it is left entirely in the hands of the local police, with no guarantees of any sort. Following an accident in Ghana in February 1999, the Ghanaian authorities informed the Swiss embassy that it “no longer wished to serve as a transit camp”. Switzerland then turned to Ivory Coast, which also decided to end its co-operation after a year, following the publication of a press article based on reports by members of the Ivory Coast police force describing serious faults on the part of the Swiss authorities. Among the things they reported were detentions lasting several weeks, failure to provide them with the means required to send deportees back to their countries of origin, and their resulting return to Abidjan72. These practices are one more sign of the lack of humanitarian consideration shown by states towards the people they deport.
66. Methods such as these, which involve increasing the number of expulsion attempts or sending foreigners to a state which co-operates under cover of vaguely formal admission agreements, seem to serve no other purpose than to get rid of the persons concerned, in the hope that they will be accepted somewhere or, at least, will not be sent back to Europe. They must be firmly condemned. It is essential to place them in a clear framework that defines the exact procedures to be followed and offers sufficient guarantees concerning the fate of the persons concerned.
67. In this regard, the Rapporteur expresses certain doubts regarding the exact missions of the liaison agents appointed in some transit states, which accept deportees of various or indeterminate nationalities, under the guise of economic co-operation. These co-operating states are designated mainly by a high-level group at the level of the European Union. However, some non-governmental organisations have questioned the level of control European states have over the activities of these agents. It would seem in some cases that private security companies are used, in agreement with airlines and sometimes with their financial support73.
7. Responsibility and penalties
68. The Rapporteur is of the opinion that one of the main obstacles to improved treatment of deported foreigners is the general climate of impunity which appears to surround allegations of ill-treatment. It is important that penalties should be seen as having a fundamental role in prevention.
69. Attention should be drawn in this connection to the case of the four BGS members who, on arriving in Dhaka, were arrested and detained for their violent acts against the Ghanaian man they were escorting74. Belgium also reported the case of a captain who was sentenced by an Algerian court for having agreed to transport an Algerian who was tied to his seat75.
70. However, it does not seem that such cases reach the court in our countries. A first obstacle is the fact that the victims are a long way away and are materially unable or unwilling to bring proceedings. From this point of view, the enforcement of an expulsion order when a complaint about ill-treatment has been made is unacceptable, as it quite clearly prevents the victim from effectively making an appeal. The same applies to the expulsion of a witness, such as the cellmate of Xhevdet Ferri. Such practices, which are fairly widespread, could be seen to be stalling techniques and could discredit the impartiality of the enquiries. It seems indispensable to ensure the suspensive effect of the appeal and to allow the temporary return of the expelled persons so they can usefully give evidence.
71. States and their judicial systems show only limited enthusiasm in investigations into allegations of ill-treatment. Often, ministries to which deportation officials are attached merely carry out a few formal administrative or disciplinary enquiries, usually resulting in the presentation of a different version of events, that of the law-enforcement agencies who have been accused. Accidents are generally held to be the result of the personal behaviour of the supposed victims. This was the explanation given by the Austrian Ministry of the Interior following the death of Marcus Omofuma, despite contradictory testimony by staff at Vienna airport. Likewise, the report of the Belgian gendarmerie concerning the expulsion of Matthew Selu indicated that he put up violent resistance and tried to attack his escort, and that in this way he was accidentally injured76. This case seems to be heading for dismissal. The same explanation was given by the French PAF in a similar case77. The repetition of these explanations gives cause for doubt, and they should in any event lead to in-depth judicial inquiries. It clearly shows the difficulty in finding proof in this type of case. It is regrettable that the practice of video recordings initiated in Belgium was abandoned in 2000.
72. It must be noted that when these cases do take place, they very rarely lead to convictions.
73. When questioned by the CPT on the subject, Germany replied that some cases were pending and that insufficient evidence had been gathered in other cases. The preliminary investigations against the BGS officers involved in the murder of Aamir Ageeb have come to nothing78. Belgium gave a similar response to Amnesty International, which questioned it about three cases of alleged ill-treatment; two of these were the subject of an ongoing procedure and the other was thrown out.
74. The British courts acquitted the three police officers of criminal and disciplinary offences in connection with the death of Joy Gardner. Allegations of ill-treatment during expulsions prompted Amnesty International to ask the British government to set up an independent authority to conduct an impartial investigation into who was responsible; the Prime Minister felt this was unnecessary.79
75. No proceedings were brought in France following the death of Arumugan Kanapathipillai. A group of intermediaries urged the state prosecutor to open an inquiry into the use of chloroform during deportations in 1997. The prosecutor had purely and simply denied the events, even though they were corroborated by two deportees’ statements and the report by the chief steward on the flight in question. The French authorities have also dismissed allegations of people being gagged or drugged as lies belonging to the realms of fantasy. 80
76. Proceedings are generally brought on a charge of manslaughter, often making it difficult to gather the necessary evidence. Furthermore, they only lead to symbolic penalties.
77. In the case of Kola Bankole for example, the case against the BGS officers was dropped because it was not established that the gag was the sole cause of death, although the expert concluded that it was a decisive cause. The doctor alone was ordered to pay a DM 5000 fine to Amnesty International81. Likewise, in the case of Marcus Omofuma, the autopsies, one carried out in Bulgaria, the other in Austria, came to contradictory conclusions. The first concluded that the cause of death was asphyxiation and the other a cardiac insufficiency, making it impossible to confirm that there was a definite causal link between the gag and death82.
78. In June 2001, the Swiss public prosecutor’s office pronounced sentences against the three police officers and the doctor charged with the murder of Khaled Abuzarifeh. Two of the police officers were declared not guilty, as there was no direct causal link between their behaviour and the death of Mr Abuzarifeh83. The doctor was sentenced to a five to seven month sentence with parole and ordered to pay compensation to the family of the victim84.
79. Since 1998, a number of complaints have been submitted against doctors and police officers for acts of intentional violence in Switzerland, France, the United Kingdom and Belgium. Jurists note an increase throughout Europe in the number of cases taken to court concerning ill-treatment during deportations85. The Paris state prosecutor claims that certain police officials, who have committed unspeakable acts, have already been given prison sentences86. It would be instructive to hear the exact verdicts.
80. These facts lead us to conclude that serious offences are being tolerated by government authorities at the highest level. Efforts must be made at all levels to establish who is responsible. The resignation of the Belgian Minister for the Interior following the death of Semira Adamu is proof that the policy of silence is beginning to reach its limits. Furthermore, within the framework of the legal proceedings into this case, the Belgian League for Human Rights asked the examining magistrate to hold an inquiry into the responsibility for manslaughter of the two successive Ministers for the Interior who authorised the “cushion technique”.
81. The Rapporteur notes with concern that the responsibilities of the different participants in the expulsion procedure are segmented and diluted, whereas this report shows clearly that it is the procedure as a whole which paves the way for abuses and the succession of blunders which has tragic consequences. It is regrettable that each person is not called to order.
8. Conclusions and proposals for expulsion proposals in conformance with human rights and the safety and dignity of the person
82. The Rapporteur believes that “return must take place only in safety and dignity”87.
83. In a number of cases where people object, even violently, to expulsion, their attitude stems partly from their lack of preparation for leaving the country and their feeling of confusion and incomprehension, due in particular to their being seen as criminals. The feeling of panic which causes resistance is often exacerbated by stress or fatigue from the outward journey, the tension in the holding centres, sudden departure and the lack of information. If they are to come to terms with deportation, a period of “mourning” and efforts to explain the situation are necessary. Although obviously it is difficult to imagine that deportation can be completely voluntary, at least a discussed or planned deportation with sufficient advice, information and support, would allow violence and aggression, and certainly a large number of forced deportations, to be largely avoided.
84. The Rapporteur noted that there were several interesting initiatives underway to make expulsion procedures more in conformance with the dignity of the persons concerned, but these are still too limited. The systematic application of all these proposals within the framework of a clear political will, will contribute to considerable improvements in the fate of foreigners awaiting expulsion.
85. The Rapporteur believes that for expulsion procedures to respect the safety and dignity of the persons concerned, they must fulfil three conditions.
86. Firstly, following the example of the voluntary repatriation policies advocated by the IOM, the process must be monitored throughout its three stages: preparation for departure, the journey and re-integration on return.
87. Secondly, if repatriation is to take place in safety and dignity, cases must be dealt with on a more or less individual basis, even if this may seem absurd in view of the high number of cases with which the authorities have to deal every day. To that end, states must introduce active policies in line with their international and European commitments with regard to laws on aliens and human rights. Human dignity must never be sacrificed in the name of immigration policy requirements. In particular, it seems indispensable to gather as much information as possible on a person’s situation, to establish his identity, to ensure he will be allowed to enter the state to which he is being sent, and also to evaluate the degree of his anxiety regarding his deportation and his state of health.
88. Thirdly, in order to create a climate of trust, the expulsion order should if possible be carried out by specially trained officials who are capable of providing both moral and psychological support, social assistance and legal advice, or of ensuring that these services are provided in some way. Law-enforcement officers should only intervene in truly violent cases. Although the Rapporteur is aware of the need to respect the ethical rules of each discipline, the Rapporteur is convinced that it can only be advantageous to form multidisciplinary teams comprising psychologists, social workers, NGO representatives, doctors, aircrews, law-enforcement officers and members of the legal service; co-operation between these different sectors can only be favourable.
89. It is particularly advisable to constitute monitoring files and to set on referees so that the foreigner awaiting expulsion receives global supervision and that a trusting dialogue can be developed with him.
90. On the basis of these general principles, it is indispensable on the one hand to develop and strengthen voluntary repatriation policies which allow room for the initiative of the person concerned, such as the policies proposed by the IOM or other national organisations. For example, the Belgian NGO, CIRE (Centre Initiatives Réfugiés Etrangers), developed policies which, in addition to financial incitements, focus on the creation of micro-enterprises. The strengthening of these policies necessarily pre-supposes the granting of material, human and financial resources. Currently, it seems that possibilities for such agreed departures are limited, and are being heavily restricted. In France, the Anafé association reports that the IOM, a national agency competent in the field of “voluntary” repatriation, has no representatives in the majority of holding areas, a claim substantiated by the police and IOM officials themselves. The IOM procedure for aid to repatriation concerns a very small minority of expelled persons in countries where it has a presence88. A high-ranking IOM official indicated that an essential condition for the efficiency of his policies was rapid access to information by the people in question, which necessarily pre-supposes widespread publicity surrounding the organisation’s activities89.
91. In January 2000, the Netherlands and the IOM launched a joint project to improve the spreading of information on IOM policies, and conclusions will be drawn after two years of observation. The Rapporteur will be very interested in the conclusions.
92. On the other hand, to ensure the transparency of procedures, it would also be highly desirable to restrict the use of detention in extremely precarious conditions and in places that are effectively prisons. Alternative methods should be looked into, such as accommodation in open reception centres, compulsory residence orders or placing under judicial supervision, so that these people may enjoy a certain degree of freedom of movement and may retain contact with the outside world, especially with their close friends and relatives, before leaving. It would also be highly desirable to enforce expulsions using only regular commercial flights and without escort. Derogation from this rule could only be in the case of persistent and proven resistance to expulsion. In these situations, it would be useful to set up a system to monitor the way expulsion is conducted, including the participation of monitoring committees or independent observers, and eventually non-governmental organisations.
93. Finally, it should be recalled urgently that there is a complete prohibition on practices and behaviours which are unacceptable and which violate the dignity of the deportee, and a framework should be drawn up for the use of restraints, without the disproportionate use of force.
94. It is also essential that potential deportees are kept informed of the progress of the procedure and of their rights, in particular concerning all the means of protection and appeal available to them. There is evidently a lack of willingness or time to provide information on the various stages of the expulsion procedure or on matters such as summonses, deadlines, notification of grounds for expulsion, dates and venues of any meetings of relevant committees or hearings, the right to legal counsel and an interpreter, the constitution of personal files, means of transport, dates and times of deportation and the destination.
95. The Rapporteur considers that expulsion often takes place in a sort of legal vacuum or outside the legal framework, in circumstances that are virtually kept secret and where the use of force is tolerated or at any rate not prohibited. It is important that there should be effective supervision of the expulsion procedures by a judge in the presence of the victim, impartial investigations into any allegations of ill-treatment and exemplary penalties against anyone found guilty of human-rights violations. In this respect, it is important that states take on all the full responsibilities which fall to them in a democratic society with regard to the persons they expel, and that they do not attempt to transfer these responsibilities either formally or informally on to the airlines.
96. There should also be greater harmony between domestic legislation and practices throughout Europe; it would be particularly advisable to draw up a code of good conduct and to establish an international monitoring system for this purpose.
Reporting committee: Committee on Migration, Refugees and Demography.
Reference to committee: Doc. 8260 and Reference No. 2345 of 25 January 1999, modified by Reference No. 2595 of 14 March 2001.
Draft recommendation and draft order unanimously adopted by the committee on 4 September 2001.
Members of the committee: Mr Iwiński (Chairperson), Mrs Vermot-Mangold (1st Vice-Chairperson), Mrs Bušić (2nd Vice-Chairperson), Mr Einarsson (3rd Vice-Chairperson), Mrs Aguiar, MM. Akhvlediani, Aliev, Aliyev G., Amoruso (Alternate: Olivo), Mrs van Ardenne-van der Hoeven, Mr de Arístegui, Mrs Arnold, MM. Begaj, Bernik, Mrs Björnemalm, MM. van den Brande, Branger, Brînzan (Alternate: Tudose), Brunhart, Mrs Burataeva, MM. Christodoulides, Cilevičs, Connor, Debarge, Díaz de Mera (Alternate: Fernández Aguilar), Dmitrijevas, Mrs Dumont, Mr Ehrmann, Mrs Err, Mr Evangelisti (Alternate: Brunetti), Mrs Fehr, Mrs Frimannsdóttir, MM. Hordies, Hovhannisyan, Ilaşcu, Ivanov, Jařab, Lord Judd, MM. Karpov, Kolb, Koulouris, Kozlowski, Laakso, Lauricella, Liapis, Libicki, Mrs Lörcher, MM. Loutfi, Luís, Mrs Markovska, MM. Mularoni, Mutman, Norvoll, Oliynyk, Mrs Onur, MM. Ouzký, Popa, Pullicino Orlando, Risari, Rogozin, Rusu, Saglam, von Schmude, Schweitzer, Mrs Shakhtakhtinskaya, Mr Slutsky, Mrs Smith, Mrs Stoisits, MM. Szinyei, Tabajdi, Tahir, Telek, Tkáč, Udovenko (Alternate: Gaber), Wilkinson, Wray, Yáñez Barnuevo, Mrs Zwerver.
N.B. The names of those members present at the meeting are printed in italics.
Secretaries of the committee: Mr Lervik, Mrs Nachilo, Ms Sirtori.
1 33 cases of suicide were recorded in Germany by the PRO-ASYL association between October 1993 and January 1998.
2 Case of Daruish Al-Nashif and others against Bulgaria, final decision of 25 June 2001.
3 “Passengers stop deportation”, Campsfield Monitor n°15, September 2000.
4 Sources: www.no-racism.net and Autonoom Centrum, “KLM – your deportation agent”.
5 Preamble and Art. 1 of the 1948 Universal Declaration of Human Rights; preamble of the International Pact of Civil and Political Rights; preamble of the Pact on Economic, Social and Cultural Rights, , and the preamble of the International Convention on the Elimination of all forms of Discrimination towards Women.
6 Ruling Maaouia against France of 5 October 2000.
7 « Licence to kill », CARF (Campaign Against Racism and Fascism) No. 50, June 2000..
8 Source: Augenauf Association, Report on the Directorate of security and social services of the canton of Zurich, prepared in December 2000 for the lections to the Bundesrat, and Amnesty International, 2000 Report.
9 Source: Contribution of the European Committee for the Prevention of Torture (CPT) at the seminar, organised by the Office of the Commissioner for the Human Rights of the Council of Europe, on human rights standards applying to the holding of foreigners wishing to enter a Council of Europe member state and to the enforcement of expulsion orders, Strasbourg, 20-22 June 2001.
10 “Licence to kill”, see footnote 4.
11 Notes of Dr Lecourt for the meeting of 23 May 2001 with the Secretary of the Department of Justice and Police of the canton of Geneva, representatives of the Swiss League of Rights and of the Geneva Ecumenical Chaplaincy for asylum seekers.
12 Proposal registered on 24 July 2000.
13 “Lukrativer Flugauftrag mit gefesselten Passagieren”, Otto Hostettler, Berner Zeitung, 8 March 2000.
14 Proposal on repatriation policy, 25 June 1999.
15 “Deaths and demonstrations spotlight detention centres”, Statewatch Bulletin, vol. 10, January-February 2000.
16Â 17 Statement by Mr Urs Hadorn, Deputy Director of the Federal Office for Refugees, Berner Zeitung, 20 April 2000, and motion tabled by Mr Jean-Jacques Schwaab in the National Council on 13 June 2000 and transformed into a parliamentary motion by decision of the Federal Council on 18.09.2000.
17 United Kingdom: Detention Rules of 2 April 2001; Belgium: Ministerial ruling of 1 April 2000 on the conditions for the transport of difficult passengers.
18 E/CN.4/1999/80 of 9 March 1999, para. 84.
19 Presentation of the legal framework of expulsion in Europe, Hearing on the humanisation of expulsion procedures, 17 April 2000, Paris.
20 Pedro Lima, Régis Sauder, “Arenc, inhumaine antichambre du départ”, Le Monde Diplomatique, November 1999.
21 Ministry of the Interior circular of 11 October 1999; 1998 report by the Senate Committee of Enquiry on Regularisation.
22 Catherine Bellini, “La défaite des mesures de contrainte”, L’Hebdo no. 6, 1996.
23 These measures are reserved for the repatriation of persons from Kosovo or Bosnia (letter from the Federal Office for Refugees, 31 May 2001).
24 Source: International Human Rights Federation.
25 Report of the American Congress on human rights practice in the United Kingdom in 1999.
26 “Arenc, inhumaine antichambre du départ”, see note 21.
27 Decision of the Administrative Tribunal of Rennes, 21 October 2000.
28 Rulings of the Federal Court, 16 August 1999 and 21 June 2000.
29 The NGO Statewatch reports the following figures: in 1999, 11 269 foreigners were detained, 3 987 were expelled, 6 773 were released without expulsion, according to the Italian press agency Ansa, there were 8 947 detainees, 1 116 with no legal justification, whereas only 348 cases of detention were invalidated by magistrates, according to the Ministry of the Interior.
30 Ruling Dougoz against Greece, 6 March 2001.
31 CPT/Inf(98)11, 18 June 1998.
32 Case of Ibrahim Kourouma, reported by Amnesty International, doc. EUR/01/02/99.
33 Visit of 25 to 27 May 1998; CPT/Inf (99) 10, date of publication: 27 May 1999.
34 Association nationale d’assistance aux frontières pour les étrangers, Paris.
35 Source: CPT
36 2000 report concerning Belgium.
37 Sources: Augenauf, Report (see note 7) and survey conducted by Béatrice Guelpa and Béatrice Schaad for Expulsions No. 8, 24 February and Amnesty International, 2000 Report.
38 Expulsions No. 8, 24 February 2000.
39 Interim report of the Belgian government in response to the CPT report concerning its 1997 visit, published on 31 March 1999, CPT/Inf (99) 6 [FR].
40 Migration NewsSheet, June 2001, p.7.
41 Source: Augenauf and notes by Dr Lecourt, see note 12.
42 Contribution by Amnesty International to the hearing on this subject in Paris on 17 April 2000, organised by the Committee on Migration, Refugees and Demography.
43 Source: Collectif Anti-Expulsion, Paris.
44 AFP press release dated 2 December 1999.
45 “La zone d’attente dénoncée de l’intérieur” (the waiting area denounced from the inside), Charlotte Rotman, Libération, 28 March 2001.
46 Source: Statement by the Belgian Cockpit Association, Brussels, 14 April 2000.
47 International Civil Aviation Organisation.
48 Convention on offences and certain other acts committed on board aircrafts of 14 September 1963.
49 Annex 9 of the Chicago Convention of 7 December 1944.
50 Source: Autonoom Centrum.
51 Ruling Nsona against the Netherlands, 28 November 1996.
52 Report of the Commission of Enquiry of the French Senate, 1998.
53 Source: Comité Anti-Expulsion.
54 VC-INFO 01-02-2001 and one year after Semira.
55 Bundesamt für Flüchtlinge.
56 “Lukrativer Flugauftrag mit gefesselten Passagieren”. Otto Hostettler, Berner Zeitung, 8 March 2000.
57 Case reported by Vincent Decroly during the Strasbourg seminar, see note 8.
58 Case of the expulsion of Amanji Gafor, reported in “Passengers stop deportation”, see note 3.
59 Amnesty International, doc. EUR01/001/2001.
60 “1. No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country”.
61 Rulings Cruz Varas against Sweden, 20 March 1991, Chahal against United Kingdom, 15 November 1996, and H.L.R. against France, 29 April 1997.
62 Source: PRO-ASYL.
63 Some expulsions were suspended because passengers protested.
64 Sources: Autonoom Centrum and National Coalition of Anti-Deportation Campaigns Augenauf for Switzerland.
65 Sources: International Human Rights federation and AFP press release dated 2 December 1999.
66 “Abschiebung per Charterjet: Behörde plant neue Flüge”, Ira von Mellenthin, Die Welt, 4 December 2000 and Contribution of Augenauf to the Strasbourg seminar, see note 8.
67 Source: Amnesty International 2000.
68 Source: Autonoom Centrum, “KLM – your deportation agent”.
69 Contribution of Cimade to the Strasbourg seminar, see note 8.
70 Source: Amnesty International 1996.
71 CPT visit to Belgium from 31 August to 17 September 1997, CPT/Inf(98)11, 18 June 1998.
72 Sources: Béatrice Guelpa and Béatrice Schaad, “La Suisse réinvente la traite des Noirs”, L’Hebdo, 20 January 2000; “Angela, morte à 20 ans sur la ‘Route de l’Afrique’” (Angela dies at 20 on “the road to Africa”), Expulsions no. 5, 3 February 2000 and “Baîllonné, expulsé, décédé…”, Expulsions no. 8, 24 February 2000. The Federal Office for Refugees has stated on this matter that “Switzerland has … carried out a certain number of confirmations of nationality during transit to third countries. (…) Each situation was individually monitored by the Swiss representation… Switzerland has always committed to returning to its territory persons who could not be identified. The conformity of this practice with its internal legislation and with its international commitments has been confirmed by both the Federal Court … and by …Parliament. (…)”
73 Source: Contributions of the Anafé and Elisa associations to the Strasbourg seminar, see note 8.
74 Source: “Die Tageszeitung”, 31 May 1999.
75 Report in response to the CPT, see note 17.
76 Amnesty International, Doc. EUR/01/01/99 and EUR/01/001/2001.
77 “La zone d’attente dénoncée de l’intérieur”, see note 42.
78 Source: Deportation Alliance.
79 Source: Amnesty International, 1994, 995, 1996, 1997 Reports.
80 Report by the Senate Committee of Enquiry, 1998.
81 “Tod des Sudanesen bleibt rätselhaft”, Süddeutsche Zeitung, 31 May 1999 and Amnesty International, Doc. AI/EUR/23/04/97.
82 Amnesty International, Doc. EUR/01/01/99.
83 The verdict on the third police officer, accused of having given the order to gag Mr Abuzarifeh, has not yet been given.
84 Source: Der Bund, 4 July 2001, telephone interview with judge Andreas Fischer of Bülach.
85 Contribution of the ILPA (Immigration Law Practitioners Association) to the Strasbourg seminar, see note 8.
86 “Bavure en zones d’attente: le témoignage qui accuse”, Alexandre Fache, L’Humanité, 28 March 2001.
87 See the references in Nicole Hitz and Bertrand Cottet, “Thèses de l’Organisation suisse d’aide aux réfugiés”, Berne, January 2000.
88 As an indication, the IOM provides the following statistics. In Belgium since the start of the policies in 1994, there have been 10 000 voluntary returns, in the Netherlands 7 000 since 1992.
89 Short speech by Ndioro Ndiaye, Assistant Director General of the IOM at the Belgim* on 16 November 1999.