Judgment I. ÚS 860/15 – Actions by the police during expulsion of an alien amounted to degrading treatment

11 November 2015

On 10 November 2015 the Constitutional Court delivered a judgment concerning police actions during expulsion of a Cameroonian citizen in June 2014. The Court found that the police breached the applicant’s fundamental right not to be subjected to degrading treatment under Article 7 (2) of the Charter of Fundamental Rights and Freedoms and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court further held that the authorities involved in criminal proceedings subsequently failed to conduct effective investigation of the applicant’s criminal complaint, and therefore breached the applicant’s right to effective investigation of the alleged degrading treatment.

The applicant had lived in the Czech Republic continuously since February 2010. In May 2014 the applicant was detained in the Facility for Detention of Foreigners in Bělá-Jezová in order to be expelled to the country of origin as his residence permit expired in May 2013. On 3 June 2014 the police reserved the applicant a seat on a flight to Cameroon scheduled for 6 June 2014. However, the applicant was not aware of the date until a social worker informed him a day prior to the departure.

In the morning of 6 June 2014 a four-member police escort entered the applicant’s room in order to transport him to the airport. However, the applicant failed to voluntarily submit himself as he had not been informed sufficiently in advance so as he could say goodbye to his Czech girlfriend, have personal belongings brought for him from his Prague apartment, and inform his family in Cameroon about the arrival. The police therefore decided to use coercive means against the passively resistant applicant, including tear gas. The disorientated applicant was subsequently handcuffed, taken to a police car and transported to the Prague airport where he was at one point moved around with the use of a baggage cart. However, the captain of the aircraft refused to allow the applicant on board. The captain came to the conclusion that due to the applicant’s state, and the fact that he was not accompanied, the applicant posed a risk for the flight. The applicant was therefore transported back to the Bělá-Jezová facility. He was eventually expelled on 2 July 2014.

On the grounds of the above mentioned police actions the applicant filed a criminal complaint which was investigated by the General Inspection of Security Forces, and subsequently dismissed as unfounded.

The Constitutional Court held that there is no question about the fact that aliens who are subject to an expulsion order are obliged to follow it and that the police are authorized to enforce the order even against the alien’s will. However, the Court emphasized that the enforcement have to fully respect rights and dignity of those aliens. An alien who is detained in order to be expelled does not become an object which needs to be transported at the time set by the police from point A (detention facility for foreigners) to point B (airplane). Not only the deprivation of personal liberty itself but also the overall circumstances of the expulsion have to be human and show sufficient respect to the human being as to a subject of rights.

Nevertheless, these conditions were not met in the applicant’s case. Primarily, the applicant had not been informed sufficiently in advance and in a proper manner about the exact time and manner in which the expulsion should take place, and this fact might have led to his non-cooperation and the ensuing problematic police actions against him. With the reference to international standards and case-law of the European Court of Human Rights, the Constitutional Court also found that the use of tear gas against the applicant, who did not present a threat for others and only refused to follow an order, was disproportionate. These circumstances, additionally supported by the subsequent use of handcuffs and transport on the baggage cart, had to cause the applicant feelings of anxiety and inferiority so intense as to reach the level of gravity amounting to prohibited degrading treatment.

The Constitutional Court further found that the circumstances of the applicant’s expulsion had not been subjected to an effective investigation by the relevant authorities. The Court emphasized that inhuman or degrading treatment constitutes a very serious interference with fundamental rights of individuals and therefore authorities involved in criminal proceedings are obliged to investigate the circumstances of the case particularly thoroughly and speedily. In the present case this condition was not met as the General Inspection of Security Forces interrogated the suspects with a considerable delay after the incident, and as the applicant‘s state of health was not sufficiently established.