AS TO THE ADMISSIBILITY OF
Application No. 28441/95
by EGYPTAIR
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 June 1995 by
EGYPTAIR against Denmark and registered on 4 September 1995 under file
No. 28441/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Egyptian commercial airline company with an
office in Copenhagen, Denmark. Before the Commission the applicant
company is represented by Mr Michael v. Kauffmann, a lawyer practising
in Copenhagen.
The facts of the case, as submitted by the applicant company, may
be summarised as follows.
By indictments of 24 September 1990, 25 September 1991,
25 February 1992, 15 December 1992 and 1 March 1993 the applicant
company was charged with violations of section 61 of the Aliens Act
(udlændingeloven) read in conjunction with section 59a of the same Act.
Sections 59a and 61 of the Aliens Act read as follows:
(Translation)
"Any person who transports a foreigner into this country is
liable to a fine if the foreigner, at the time of his entry
into Denmark, does not possess the necessary travel
documents and visa ...
If the offence is committed by a company or a similar
corporation the company as such can become liable to a
fine."
The indictments referred to 21 counts involving a total of
61 foreigners who, allegedly, had arrived in Denmark during the period
28 July 1989 until 17 October 1992 using one of the applicant company's
planes but without the necessary travel documents. More specifically
it concerned 25 passengers who had arrived without any travel
documents, 26 passengers with passports but with falsified visas, 6
passengers with falsified passports and 4 passengers with torn up
passports and falsified visas.
The case was heard in the Copenhagen City Court (Københavns
Byret) in the spring of 1993. During the proceedings it was agreed
between the parties that 57 passengers had indeed arrived in Denmark
with the applicant company's planes whereas four passengers had been
met by the police at "gate check" at the Kastrup airport.
Whereas the applicant company accepted the charges in respect of
14 passengers it maintained, in particular, that the four passengers
met at "gate check" had not arrived in its planes. As regards the
remaining passengers the applicant company maintained, in particular,
that it had not been established that its employees had failed to check
in a sufficiently thorough manner whether the passengers in question
fulfilled the conditions for entering Denmark. As regards the evidence
the City Court heard a representative of the applicant company who
explained how its employees had been trained and how they had been
instructed to check the available travel documents. Furthermore, the
Court heard a police officer who explained in particular the meaning
of a "gate check". As documentary evidence the Court was presented
with, inter alia, the travel documents in question. No request for the
hearing of other witnesses was made.
After an evaluation of the available evidence the City Court
convicted the applicant company as charged in respect of 59 passengers
whereas it was acquitted in respect of two passengers. The judgment was
pronounced on 25 May 1993. The court found it established that all
passengers had arrived on board the applicant company's planes and that
its employees had not checked in a sufficiently thorough manner whether
the passengers possessed valid travel documents. In particular the
court pointed out that the applicant company had been informed of the
visa forms introduced and that it was relatively easy to check whether
the forms used were valid. It referred also in some instances to the
poor quality of the available travel documents. The applicant company
was sentenced to pay a fine, totalling 472,000 DKK.
On 28 June 1993 the applicant company appealed against the
judgment to the High Court of Eastern Denmark (Østre Landsret).
During the proceedings in the High Court an issue arose as to the
available evidence. From the court transcript of 30 November 1994 the
following appears:
(Translation)
"After considering the issue counsel for the defence
requests as follows:
1. First, that none of the police reports in the
case, or information therefrom, be part of the
proceedings;
2. In the alternative, if the court decides that
all police reports or parts thereof may be part
of the proceedings, those persons from whom the
statements originate - i.e. police officers,
passengers and cleaners ... - shall be heard, at
the request of counsel for the defence, as
witnesses.
The prosecution has denied that police reports have been
part of the proceedings in the case. On the other hand
information about factual circumstances in the reports has
been submitted, for example, whether there has been a gate
check and what has happened with the travel documents of
the persons concerned. ...
Counsel for the defence has referred, in support of the
request, to section 877 subsection 3 of the Administration
of Justice Act (retsplejeloven) and Article 6 paras. 1 and
3 (d) of the Convention, in particular the latter. It is,
of course, possible to produce passports, tickets and other
documents during the trial but no information from police
reports may be added in so far as this information may be
produced through the direct taking of evidence. The factual
information in a police report cannot be distinguished
clearly from the explanations. As regards gate check it is
of importance to have established where and how they were
carried out and counsel refers in this respect to the
possibilities of disposing of travel documents prior to the
passport control.
The prosecution has referred to its reasoned views and has
submitted in addition that the defence counsel's witness
evidence is irrelevant, inter alia since the case does not
concern the passengers' circumstances but is directed
against the airline... ." On 19 December 1994 the High
Court decided the issue as follows:
(Translation)
"The documentary evidence in question, which concerns
mainly factual details, does not exceed what would be
admitted pursuant to section 877 subsection 3 of the
Administration of Justice Act, had the defence counsel
requested the Court expressly to decide on the question of
documentary evidence when the prosecution presented the
case, nor is the documentary evidence contrary to Article 6
para. 1 and para. 3 (d) of the Convention. Since counsel's
request for the hearing of witnesses in these circumstances
cannot be accepted it is decided that counsel's requests
are rejected."
During the proceedings the High Court was presented with
passports, visas, luggage-tags, tickets, boarding-passes and passenger
lists. In addition, the two witnesses heard in the City Court were
heard again.
On 13 January 1995 the High Court pronounced judgment in the
case. On the basis of an evaluation of the available evidence and with
reference to the reasons adduced by the City Court the latter's
judgment was upheld. The High Court referred also to established
case-law in cases concerning sections 59a and 61 of the Aliens Act.
On 27 January 1995 the applicant company requested the Ministry
of Justice to grant leave to appeal to the Supreme Court (Højesteret)
alleging inter alia that the conviction and sentence amounted to a
violation of Article 3 of the Convention and that the High Court's
decision of 19 December 1994 concerning the taking of evidence violated
Article 6 paras. 1 and 3 (d) of the Convention.
On 9 August 1995 the Ministry of Justice refused to grant the
applicant company leave to appeal to the Supreme Court.
COMPLAINTS
1. The applicant company complains, under Article 3 of the
Convention, that its conviction by the High Court leads to asylum
seekers being refused entry into Denmark which in effect exposes them
to a risk of being subjected to torture, inhuman or degrading treatment
or punishment.
2. Furthermore, the applicant company invokes Article 6 paras. 1 and
3 (d) of the Convention complaining that it was not afforded a fair
trial as the High Court refused to hear as witnesses the persons whom
the applicant company was convicted for transporting to Denmark and the
police officers and others who had been interviewed for the police
reports.
3. Finally, the applicant company complains, under Article 6 of the
Convention and with reference to the principle of equality, that only
private individuals and private companies such as the applicant are
prosecuted for infringing section 59a of the Aliens Act and not
State-owned companies such as the Danish Railways (De Danske
Statsbaner).
THE LAW
The applicant company invokes Article 3 (Art. 3) of the
Convention which reads as follows:
"No one shall be subjected to torture or inhuman or
degrading treatment or punishment."
In support of its claim the applicant company alleges that its
conviction in effect leads to asylum seekers being refused entry to
Denmark with the risk of their being subjected to torture, inhuman or
degrading treatment.
However, under Article 25 (Art. 25) of the Convention, the
Commission may only receive petitions from a "person, non-governmental
organisation or group of individuals claiming to be the victim of a
violation ...". It follows from this provision that the applicant must
be affected personally by the act complained of, and that the
Convention does not permit an actio popularis. The Commission is
required to examine the applicant's complaints only in so far as it was
the victim of an alleged violation (see inter alia No. 9297/81, Dec.
1.3.82, D.R. 28, p. 204). The Commission finds that the applicant
company cannot claim in the present case to be the victim of a
violation of Article 3 (Art. 3) of the Convention.
It follows that the application, as regards the alleged violation
of Article 3 (Art. 3) of the Convention, is incompatible ratione
personae with the provisions of the Convention, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant company also complains that it did not have a fair
trial and relies on Article 6 paras. 1 and 3 (d) (Art. 6-1, 6-3-d) of
the Convention which read, as far as relevant, as follows:
"1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on
his behalf under the same conditions as witnesses against
him;
..."
With regard to the judicial decisions of which the applicant
complains, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to the established
case-law of the Convention organs (see e.g. Eur. Court HR, Schenk v.
Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, para.
45).
It is true that the applicant company invokes Article 6 paras. 1
and 3 (d) (Art. 6-1, 6-3-d) and in support thereof submits that the
High Court refused the defence's request to hear as witnesses the
persons it was convicted for having transported to Denmark, the police
officers who had arrested these persons and other persons who had been
interviewed for the police reports.
In this respect the Commission recalls that the taking of
evidence is governed primarily by the rules of domestic law and that
it is in principle for the national courts to assess the evidence
before them, including its relevance. The Commission's task is to
ascertain whether the proceedings in their entirety, including the way
in which evidence was taken, were fair. All the evidence must normally
be produced in the presence of the accused at a public hearing with a
view to adversarial argument. However, the use of evidence obtained at
the stage of police inquiry is not in itself inconsistent with
paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d), provided that
the rights of the defence have been respected. As a rule these rights
require that the defendant be given an adequate and proper opportunity
to challenge and question a witness against him either when he was
making his statements or at a later stage of the proceedings (see e.g.
Eur. Court HR, Saïdi v. France judgment of 20 September 1993, Series
A no. 261-C, p. 56, para. 43).
In the present case the Commission recalls that, except for four
passengers, it was not in dispute that they arrived on board the
applicant company's planes. Furthermore, the Commission recalls that
the documentary evidence produced in the proceedings in the domestic
courts did not relate to the passengers' personal circumstances but
concerned primarily factual matters such as passports, visas,
luggage-tags, boarding cards and tickets, the evaluation of which was
relevant in order to determine whether the passengers had been in
possession of the necessary travel documents as required by section 59a
of the Aliens Act. From the judgments the Commission notes also that
the applicant company's conviction was not based to any significant
extent on statements made by passengers or other witnesses to the
police. It has not been established that the applicant company did not
have an appropriate opportunity to challenge the evidence which was
actually used against it. Finally, the Commission finds that the High
Court's decision of 19 December 1994 cannot be understood otherwise
than that it was the court's view, having regard to the available
documentary evidence, that the hearing of the witnesses as proposed
would be of no relevance to the outcome of the case.
The Commission finds, therefore, that the proceedings do not
disclose any appearance of a violation of Article 6 paras. 1 and 3 (d)
(Art. 6-1, 6-3-d) of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Finally, the applicant company complains that only private
individuals and private companies are prosecuted for infringing
section 59a of the Aliens Act and not State-owned companies such as
Danish Railways. It invokes in this respect Article 6 (Art. 6) of the
Convention and the principle of equality.
The Commission considers that it can be left open whether the
fact that the Danish authorities may have found no reason to prosecute
others relates to the applicant company's civil rights or a criminal
charge against it, which is a prerequisite for the applicability of
Article 6 (Art. 6) of the Convention. Even assuming this to be the
case, the Commission finds that the applicant company has not
substantiated that the guarantees of this provision in the
circumstances referred to have been set aside. Moreover, although a
measure which in itself does not violate a particular substantive
Article of the Convention may infringe this Article when read in
conjunction with Article 14 (Art. 14) for the reason that it is of a
discriminatory nature, the Commission does not find it substantiated
that the case involves a differential treatment in analogous situations
such as to disclose an appearance of a violation of Article 6 read in
conjunction with Article 14 (Art. 6+14) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy