EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

General principles of the Court and explanations The word “expulsion” is to be understood here in the generic meaning, in current use (to drive away from a place). It was understood that extradition was outside the scope of this paragraph. It was also understood that an individual could not invoke this paragraph in order to avoid certain obligations which are not contrary to the Convention, for example, obligations concerning military service. An individual’s right to enter the territory of the State of which he was a national could not be interpreted as conferring on him an absolute right to remain in that territory . For example, a criminal who, having been extradited by the State of which he was a national, then escaped from prison in the other State, would not have an unconditional right to seek refuge in his own country. Similarly, a soldier serving on the territory of a State other than that of which he is a national, would not have a right to repatriation in order to remain in his own country. General principles of the Court and explanations The Court reiterates its case-law according to which “collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken following, and on the basis of, a reasonable and objective examination of the particular case of each individual alien of the group” (see Čonka , cited above, § 59). The Court has subsequently specified that “the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis” (see, among other authorities, Sultani , cited above, § 81, and Hirsi Jamaa and Others , cited above, § 184). That does not mean, however, that where there has been a reasonable and objective examination of the particular case of each individual “the background to the execution of the expulsion orders plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4” (see Čonka , cited above, ibid.). With regard to the scope of application of Article 4 of Protocol No. 4, the Court notes that the wording of the provision does not refer to the legal situation of the persons concerned, unlike Article 1 of Protocol No. 7 which the Court will examine below (see paragraphs 228 to 231 below). Moreover, it can be seen from the commentary on the draft of Protocol No. 4 that, according to the Committee of Experts, the aliens to whom Article 4 refers are not only those lawfully residing within the territory, but also “all those who have no actual right to nationality in a State, whether they are merely passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality” (Article 4 of the Committee’s final draft, p. 505, § 34). In accordance with that interpretation, in the cases that have been brought before it the Court has applied Article 4 of Protocol No. 4 to persons who, for various reasons, were residing within the territory of a State or were intercepted on the high seas on ships flying the flag of the respondent State and returned to the originating State (see, inter alia , Čonka ; Sultani ; and Hirsi Jamaa and Others , cited above). Article 4 of Protocol No. 4 to the Convention Prohibition of collective expulsion of aliens Collective expulsion of aliens is prohibited.

EUROPEAN COURT OF HUMAN RIGHTS IN ACTION

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