77 I.L.R. 384

Nationality — Statelessness — Entitlement to procedural safeguards as stateless person — Onus on alien to prove loss of nationality — Convention relating to the Status of Stateless Persons, 1954 — Articles 1 and 31

Aliens — Refugees — Issue of alien with refugee travel document — Loss of refugee status by voluntary re-availment of protection of State of nationality — The law of Belgium

Nemeth

Belgium, Conseil d’Etat. 26 June 1973

(Réunion. President and Rapporteur; Sarot and Rousseau, Conseillers)

Summary: The facts:— Nemeth was born in Hungary and entered Belgium in 1957, where he committed numerous offences and was convicted and imprisoned several times. In 1970 an expulsion order was made against him on the ground that his presence was a threat to public order. He applied to the Conseil d’Etat for the annulment of the order on the ground that he was a stateless person and the procedure followed for his expulsion violated Article 31 of the Convention relating to the Status of Stateless Persons, 1954.

Held:— The application was rejected.

It was for a person claiming the benefit of provisions relating to stateless persons to prove that he had lost the nationality which he had acquired at birth. The fact that an alien recognized as a refugee had been required to obtain a visa to enter his State of origin did not prove that he had lost its nationality, where the visa was merely attached to his refugee travel document.

The text of the judgment of the Conseil d’Etat commences on the opposite page. [*385]

The Conseil d’Etat has considered the application lodged on 20 January 1971 by which Lajos Nemeth:

1) requests the annulment of the order made by the Minister of justice on 19 November 1970 requiring him to leave Belgium and prohibiting him from returning, which was notified on 2 December 1970;

2) claims compensation of 100.000 francs for the damage caused to him.

. . .

The applicant, who was born in Hungary, entered Belgium on 6 June 1957, having come from a refugee camp in Yugoslavia. The United Nations High Commissioner for Refugees issued him with a certificate of political refugee status on 13 September 1957. During his stay in Belgium he was the object of numerous convictions for various offences. On 14 July 1970 he was sentenced to six months’ imprisonment for assault. On 7 September 1970 the Procureur G&eacutge;néral attached to the Court of Appeal of Brussels notified the case of the applicant to the Minister of Justice, taking the view that his expulsion was necessary. By the order of 19 November 1970 which is being challenged, the Minister required the applicant to leave Belgium and prohibited him from returning. That order was justified by the consideration that the behaviour of the applicant “makes his presence a threat to public order”. It was notified to him on 2 December 1970 in the prison at Malines where he was serving a sentence. The director of the prison notified him that “when he had served his sentence he would be freed with an order to leave the country within fifteen days”. The time-limit was extended at the request of the applicant’s counsel until 7 January 1971. In a judgment of 7 March 1972 the applicant was again convicted and is currently serving his sentence of imprisonment which will be completed on 2 July 1973.

On the first object of the application

In his first ground the applicant contends that the order which is being challenged was made in violation of the Convention relating to the Status of Stateless Persons signed in New York on 28 September 1954 and approved by the Law of 12 May 1960, and Article 5(7) of the Law of 28 March 1952 on the control of aliens. He argues that since he is a stateless person within the meaning of the Convention, the order being challenged should not have been made until an opinion had been obtained from the Consultative Commission for Aliens provided for by the Law of 28 March 1952. The Convention relating to the Status of Stateless Persons of 28 September 1954, approved by the Law of 12 May 1960, defines, in Article I, a stateless person as [*386] a person who is not considered as a national by any State under the operation of its law.

Article 31 of the Convention, with regard to the expulsion of stateless persons, lays down the following rules:

1. The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.

2. The expulsion of such a stateless person shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the stateless person shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

The Law of 28 March 1952 on the control of aliens, modified by the Law of 30 April 1964, provides in Article 5 that an expulsion order can only be made after an opinion from the Consultative Commission for Aliens has been obtained, with regard in particular to

7. An alien who has the status of a stateless person as defined in the Convention relating to the Status of Stateless Persons of 28 September 1954, approved by the Law of 12 May 1960.

It is for an applicant who claims the benefit of the provisions relating to stateless persons to prove that he has lost the Hungarian nationality which he has enjoyed from birth. The applicant has failed, even in accordance with the Hungarian laws which he has adduced, to furnish proof that he has lost Hungarian nationality and is therefore stateless.

The applicant has invoked in support of his claim the fact that, in order to enter Hungary in 1968, he was required to take steps “similar to those applicable to all non-Hungarian nationals and that he only received a Hungarian visa valid for one month”. He regards this as proof that he had lost his Hungarian nationality.

In July 1968 the applicant was issued with a “Belgian travel document for refugees” valid until 6 May 1969, having been recognized as a refugee by the United Nations High Commissioner for Refugees. With this refugee travel document the applicant made a visit to Hungary. On 22 January 1969 the representative of the United Nations High Commissioner for Refugees notified the Minister of Justice that the applicant “having voluntarily re-availed himself of the protection of the country of which he was a national, had ceased to be a refugee . . . ”. The fact that the applicant had been required to obtain a visa in order to enter Hungary did not in any way prove that he had lost his Hungarian nationality since that visa was attached to his Belgian refugee travel document. [*387]

Having failed to prove that he had lost his Hungarian nationality and become stateless, the applicant cannot seek to rely on the pro- visions of Article 5(7) of the Law of 28 March 1952 and Article 31 of the Convention relating to the Status of Stateless Persons. This ground of application cannot therefore be accepted.

As a second ground of application, the applicant claims that the order which he challenges was taken in violation of Article 31(3) of the Convention of 28 September 1954, in that he was not allowed the reasonable period provided for in that provision within which to seek admission into another country. But the applicant has failed to prove that he has the status of a stateless person so that Article 31(3) of the Convention is inapplicable to him.

[The Conseil d’Etat held that it was not competent to examine the claim for damages allegedly caused by the fact that the Minister of justice had deprived the applicant of identity papers. The application was rejected.]

[Report: R.A.A.C.E. 1973, p. 539 (in French).]