Application No. 21580/93
by D.B.
against Finland
The European Commission of Human Rights sitting in private on
7 March 1996, the following members being present:
MM. S. TRECHSEL, President
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 March 1993 by
D.B. against Finland and registered on 25 March 1993 under file
No. 21580/93;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 12 December 1995 and the observations in reply submitted
by the applicant's counsel on 11 February 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Liberian citizen, born in 1970. Before the
Commission he is represented by Markku Fredman, a lawyer practising in
Helsinki.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Particular circumstances of the case
On 2 February 1993 at 22.55 hours the applicant was apprehended
by the City Police of Helsinki. When requested by a police officer to
identify himself, he had been unable to present any official document
showing his particulars. It transpires from a subsequent detention
order of 3 February 1993 (see below), that he was therefore detained
for identification purposes pursuant to section 19 of the 1966 Police
Act (poliisilaki 84/66, polislag 84/66).
According to the Government, the legal basis for the applicant's
detention as from 2 February 1993 was actually section 13, subsection
2 of the Police Act and not the erroneously indicated section 19.
The applicant was detained in a cell intended for suspects at the
police headquarters of Pasila, Helsinki.
On 3 February 1993 at 19.30 hours the deprivation of the
applicant's liberty was converted into detention pursuant to sections
45, 46 and 47 of the 1991 Aliens Act (ulkomaalaislaki 378/91,
utlänningslag 378/91). The aim of this detention was to have the
applicant expelled.
On 5 February 1993 the City Court (raastuvanoikeus,
rådstuvurätten) of Helsinki prolonged the applicant's detention under
the Aliens Act by two weeks, since he had no residence permit in
Finland, was incapable of supporting himself and could be expected to
evade his future expulsion. The applicant was transferred to the
Helsinki County Prison.
On 7 February 1993 the applicant requested asylum in Finland.
On 19 February 1993 the City Court again prolonged the
applicant's detention by two weeks but on 5 March 1993 it rejected a
further prolongation request. It appears that the applicant was then
released. In the autumn of 1993 he left Finland for Sweden.
Relevant domestic law
1. Detention for identification purposes
According to the Police Act, everyone shall, if requested,
provide a police officer on duty with information necessary for the
identification of the person. A police officer may apprehend, for
identification purposes, a person whose identity is unknown, who
refuses to provide information enabling his identification or who gives
information which is presumably false. An apprehended person must be
released as soon as he or she has been identified and at the latest
within 24 hours (section 13, subsection 2, as amended by Act
no. 453/87).
2. Detention for preventive purposes
A police officer has the right to remove or apprehend and
temporarily detain a person who makes noise or otherwise behaves in a
manner causing immediate danger to public order or security or who
issues threats or otherwise behaves in a manner leading to the
conclusion that he is likely to commit an offence. Detention for
preventive purposes may last only as long as the above-mentioned danger
or the likelihood that the detainee would commit an offence exists. At
any rate, the detainee must be released within 24 hours (section 19 of
the Police Act, as amended by Act no. 453/87).
3. Detention in accordance with the Aliens Act
Pending a decision as to whether an alien shall be allowed to
enter the country, alternatively be returned or expelled, or pending
another resolution of the matter, he or she may be ordered to report
to the police regularly (section 45, subsection 1 of the Aliens Act,
as in force at the relevant time). If there are substantial grounds for
believing that he or she will go into hiding or commit criminal
offences in the country, the alien may be detained (section 46).
Up to 1 January 1994 an alien detained in accordance with the
Aliens Act was to be placed in facilities especially reserved or
otherwise suitable for this purpose (section 47, as in force at the
relevant time). According to the relevant travaux préparatoires, such
detention could only for particularly weighty reasons be implemented
on premises for suspects or in a prison (Government Bill no. 47/90,
p. 19). Detention pursuant to the Aliens Act was otherwise to be
governed by the provisions for the treatment of prisoners on remand,
as far as these were applicable (section 47, as in force at the
relevant time).
As of 1 January 1994 an alien detained in accordance with the
Aliens Act shall be placed in facilities suitable for this purpose
(section 47, as amended by Act no. 639/93). According to the relevant
travaux préparatoires, the economic situation in Finland had rendered
it impossible to implement detention under the Aliens Act in facilities
especially reserved for this purpose. Therefore it was now, as a rule,
to be implemented in a prison or on detention premises of the police
(Government Bill no. 293/92, p. 11).
The competent court shall be notified of a detention in
accordance with the Aliens Act at the latest on the day after it has
been ordered, if necessary first by telephone and subsequently by a
confirmation in writing. The court must consider the grounds for the
detention without delay and at any rate within a period of four days
from the detention. The court shall proceed as when considering a
request for detention on remand (section 48 of the Aliens Act).
COMPLAINTS
1. The applicant complained that the deprivation of his liberty from
2 February 1993 at 22.55 hours to 3 February 1993 at 19.30 hours for
the purpose of verifying his identity violated Article 5 para. 1 of the
Convention. He considered that he was not a danger to public order or
security and had not threatened to commit a crime. The conditions for
his detention in accordance with section 19 of the Police Act were
therefore not met.
2. The applicant furthermore complained that the deprivation of his
liberty as from 3 February 1993 at 19.30 hours pursuant to the Aliens
Act was also in violation of Article 5 para. 1. He submitted that no
particularly weighty reasons existed for not implementing his detention
on premises prescribed in section 47 of the Aliens Act.
3. The applicant finally alleged that the successive application of
the Police Act and the Aliens Act circumvented the time-limit for the
court review prescribed in section 48 of the Aliens Act. Since he was
detained on 2 February 1993 the City Court of Helsinki should have been
informed of his detention at the latest on 3 February and not on
4 February 1993. He again invoked Article 5 para. 1.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 March 1995 and registered
on 25 March 1993.
On 11 September 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48 para. 2
(b) of the Rules of Procedure.
On 20 November 1995 the applicant's representative informed the
Commission that he was unaware of the applicant's whereabouts.
The Government's written observations were submitted on
12 December 1995, after an extension of the time-limit fixed for that
purpose. The applicant's representative replied on 11 February 1996.
REASONS FOR THE DECISION
The applicant complains that the deprivation of his liberty in
February 1993 was in violation of Article 5 para. 1 of the Convention.
The Government principally submit that the application should be
struck off the Commission's list of cases in pursuance of Article 30
para. 1 of the Convention. The applicant's behaviour shows that he does
not intend to pursue his application and no particular reason would
justify the further examination of the case in such circumstances. The
Government stress that section 47 of the Aliens Act was amended
subsequent to the applicant's detention and no longer requires that an
alien detained in accordance with this law should be placed in
facilities especially reserved or otherwise suitable for this purpose.
The applicant's counsel opposes a strike-off, fearing that it
might be impossible for his client to inform him of his present
whereabouts. In addition, general considerations strongly militate in
favour of pursuing the Commission's examination, since the detention
of asylum seekers is a widely debated issue in Europe. It is true that
the Aliens Act was amended so as to avoid that asylum seekers are
detained unlawfully. However, this amendment weakened their protection
and in Finland most detained asylum seekers are now being held in
isolation for 23 hours a day.
The Commission notes that the applicant has not informed his
counsel before the Commission of his whereabouts since he left Finland
in 1993. In these circumstances the Commission finds it reasonable to
conclude pursuant to Article 30 para. 1 (a) of the Convention that he
does not intend to pursue his application.
In accordance with Article 30 para. 1 in fine the Commission must
also determine the possible existence of special circumstances
regarding respect for Human Rights, as defined in the Convention, which
would require a further examination of the present application. Such
a question can arise in particular where, through the applicant's
individual case, the Commission is concerned with the legislation,
legal system or practice of the respondent State.
There is no appearance of any special circumstances of the
above-mentioned character which would require that the examination of
the present application be pursued. The Commission observes, in
particular, that section 47 of the Aliens Act, the application of which
was challenged by the applicant, was amended subsequent to his
detention. As regards counsel's further allegation that asylum-seekers
in Finland are currently being detained in isolation for 23 hours a
day, it has not been argued that such detainees are being prevented
from lodging their own applications with the Commission.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy