Doc. 9671

24 January 2002

Expulsion procedures in conformity with human rights and enforced with respect for safety and dignity

Recommendation 1547 (2002)

Reply from the Committee of Ministers

adopted at the 825th meeting of the Ministers’ Deputies (22 January 2003)

1.       The Committee of Ministers welcomes Parliamentary Assembly Recommendation 1547 (2002) on expulsion procedures in conformity with human rights and enforced with respect for safety and dignity. It shares the concern expressed by the Parliamentary Assembly as regards the risk of violations of fundamental rights and freedoms which may arise in the context of enforced removal procedures.

2.       The Committee of Ministers recalls that each Contracting Party to the European Convention on Human Rights is bound, under Article 1, to secure for everyone within its jurisdiction the rights and freedoms defined in the Convention. This includes persons subjected to an expulsion procedure. Member states should take the relevant case-law of the European Court of Human Rights into account in their legislation and practice in this field, especially with respect to Articles 2, 3, 5, 8, 13 and 14 of the Convention and with respect to Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7 to the Convention.

3.       In the preparation of this reply, the Committee of Ministres has requested and received opinions from the Steering Committee for Human Rights (CDDH) and the ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) and has also received comments from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

Procedures and practices in member states - implementation of existing texts

4.       The Assembly recommends, inter alia, that the Committee of Ministers conduct an in-depth study on the procedures and practices used in the Council of Europe’s member states during the enforcement of legally decided expulsion orders (paragraph 11).

5.       In this context, the Committee of Ministers would like to stress the activities of the CPT, the CAHAR and by the Commissioner for Human Rights. Their respective work may contribute to obtaining reliable information on expulsion procedures currently in force in the various member states, on their degree of transparency and on whether practices are in conformity with the European Convention on Human Rights, with other relevant Council of Europe instruments and with national law.

6.       The Committee of Ministers considers that the CPT plays a role of primary importance. It recalls that on its very first visit (to Austria in May 1990), the CPT examined the situation of persons held in premises located in the transit zones of international airports and the procedures applicable to them. Since then it has made numerous visits to international airports. In its 7th General Report (CPT/Inf(97)10, paragraphs 35 and 36), the CPT states certain fundamental principles governing the treatment of foreign nationals detained under aliens’ legislation and, more particularly, the use of means of coercion in the course of forced removals.

7.       Moreover, many public visit reports made by the CPT contain guidelines in the field of forced removal of foreigners. The specific question of forced removal of foreigners by air is the subject of important chapters in two recently published reports, in March 2002 (on the periodic visit made to Switzerland in February 2001 (CPT/Inf(2002)4), and in October 2002 (on the periodic visit made to Belgium in November/December 2001 (CPT/Inf(2002)25). The reports set out a number of principles by which the authorities of states Parties to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment should be guided when drafting or revising instructions on the subject.

8.       The CAHAR, in fulfilling its task of following developments in the field of refugees and asylum seekers, has asked member states to report on the implementation of the Committee of Ministers’ Recommendation No. R (98) 13 on the right to an effective remedy by rejected asylum seekers against decision on expulsion in the context of Article 3 of the European Convention on Human Rights. The assessment of the replies remains on the agenda of the CAHAR.

9.       The Council of Europe Commissioner for Human Rights, in his Recommendation (CommDH(2001)1) on the rights of foreigners wishing to enter the territory of Council of Europe Member states and on the execution of expulsion decisions, stresses, in particular, the importance of facilitating voluntary returns and calls on member states to prohibit certain types of practices.

10.       While recognising that expulsion measures may affect also other non-nationals of a member state than asylum seekers, the Committee of Ministers would like to stress that it has addressed a number of recommendations to member states in the field, the most relevant being Recommendation No. R(99)12 on the return of rejected asylum seekers, which is referred to by the Assembly. Another important text is the above-mentioned Recommendation No. R(98)13. It considers it to be of utmost importance that these Recommendations be implemented at the national level.

Code of good conduct

11.       The Committee of Ministers supports the idea put forward by the Parliamentary Assembly to draw up a code of good conduct for expulsion procedures (paragraph 12). This would make it possible to lay down the various guidelines developed by different bodies within the Council of Europe in one pragmatic text to be used by governments when developing national legislation and regulations on the subject. Such a text should also be a useful source of guidance for those directly or indirectly involved in expulsion measures.

12.       In addition, it would provide an opportunity to increase the visibility of the Council of Europe’s activities in this field.

13.       The Committee of Ministers would prefer this work to be carried out by one of the existing intergovernmental expert committees, in co-operation or consultation with other intergovernmental committees with special knowledge in the field and with the CPT. It will examine the possibilities to organise this activity in the context of discussions on the programme of activities.

Recommendations to member states

14.       As to the various detailed recommendations to be addressed to member states (paragraph 13), the Committee of Ministers notes that many of them are based on already existing texts. It considers that they should be examined by the Committee charged with elaborating a code of good conduct.

15.       The Committee of Ministers would like to stress already at this stage, however, that it fully shares the opinion expressed by the Assembly and by the CPT about the absolute prohibition of techniques involving partial or complete obstruction of the respiratory passages.

16.       Like these bodies it also stresses the importance of specific training for staff assigned to enforce expulsion orders. This is particularly important in cases involving children. Expulsion procedures in such cases should be given particular attention in the elaboration of the code.