FOURTH SECTION
DECISION
Application no. 45167/19
Adewale Bamidele ODEBIYI
against Portugal
The European Court of Human Rights (Fourth Section), sitting on 17 October 2023 as a Committee composed of:
Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the application (no. 45167/19) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 August 2019 by Mr Adewale Bamidele Odebiyi, (“the applicant”), a Nigerian national who was born in 1975 and is detained in the prison of Caxias. He was represented by Ms M.G. Canada, a lawyer practising in Sintra;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant is a Nigerian national. On 20 December 2017 he arrived at Lisbon airport at approximately 3 p.m. or 4 p.m. accompanied by three Nigerian women who were travelling with false identification documents. They were stopped and interrogated by the border control service (Serviço de Estangeiros e Fronteiras, “SEF”). Two of the women pretended to be the applicant’s wife and daughter, while the third was apart from the triad. The applicant failed to provide answers concerning his entry and stay in accordance with the documents in his possession, therefore he was not allowed to enter Portuguese territory. An administrative inquiry was immediately initiated.
2. During the above-mentioned administrative proceedings, the applicant’s documents were seized, and his mobile phone data was accessed. The applicant signed a consent form written in Portuguese, with the mention that its content had been explained to him in English by the SEF agent.
3. On 21 December 2017, following a request from the applicant, a lawyer was appointed to him.
4. On the same day, considering that there was a serious suspicion of document forgery and facilitation of illegal immigration, a criminal investigation was initiated against the applicant, and he was given the status of defendant (constituição de arguido).
5. On 23 December 2017 the applicant was heard by an investigating judge of the Lisbon Criminal Investigation Court. On the same day the investigating judge decided to place the applicant under pre-trial detention (prisão preventiva) in a prison facility.
6. On 28 December 2017 the three women (see paragraph 1 above), who were placed in a detention centre with a view to being deported, gave statements before an investigating judge, in the presence of the applicant’s lawyer, for future use during the proceedings (declarações para memória futura).
7. On 12 November 2018 the applicant was convicted of three counts of aggravated forgery of documents and three counts of facilitation of illegal immigration and thus sentenced to four years’ imprisonment. The Lisbon Court relied essentially on the applicant’s statements after he was given the status of defendant during the investigation and during the trial. Furthermore, they heard witnesses and the statements for future use of the three women who accompanied him at Lisbon airport (see paragraph 6 above).
8. On 20 February 2019, following an appeal by the applicant, the Lisbon Court of Appeal upheld the applicant’s conviction.
9. Under Article 6 of the Convention the applicant complained of a lack of assistance from an interpreter and a lawyer during his interactions with SEF at Lisbon airport and the consequent unfairness of his conviction, which, he alleged, relied on inaccurate translations, statements for future use and the incorrect assessment of the evidence by the domestic courts, including the content of his mobile phone. In addition, the applicant complained of the length of the period of detention, before being presented to a judge.
THE COURT’S ASSESSMENTComplaints under Article 5 of the Convention
10. The Court being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the applicant’s complaints brought under Article 6 of the Convention concerning his deprivation of liberty and the lack of assistance from an interpreter and a lawyer during his interactions with SEF at the airport from the standpoint of Article 5 § 1 c) and f), 5 § 2, and 5 § 3 of the Convention.
11. The Court notes at the outset that a difference must be distinguished between two different periods. The first period elapsed from 20 to 21 December 2017, that is the period during which the applicant was confined in the airport transit zone in the context of border control administrative proceedings (see paragraph 1 above). The second period covers the time that elapsed from 21 to 23 December 2017, more precisely from the moment a criminal investigation was initiated against the applicant and he was given the status of defendant in the criminal proceedings until he was questioned by the investigating judge (see paragraphs 1, 4 and 5 above).
12. Regarding the applicant’s stay in the transit zone of Lisbon Airport, the Court refers to principles established in its case-law, in particular, Amuur v. France, 25 June 1996, §§ 41-43, Reports of Judgments and Decisions 1996-III; Saadi v. the United Kingdom [GC], no. 13229/03, §§ 65-66 ECHR 2008; and Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, § 144, 21 November 2019.
13. In the present case the applicant was held in the SEF facilities in the transit zone of Lisbon airport from approximately 3 p.m. to 4 p.m. on 20 December 2017 until the next day (paragraph 1 above), while the necessary steps were taken to assess whether he could enter Portuguese territory. Even assuming that this limitation should be considered as a deprivation of liberty within the meaning of Article 5 § 1 f) of the Convention, it pursued the aim of prevention of unauthorised entry into the country, and its period cannot be said to have exceeded that reasonably required for the purpose pursued. There is nothing to suggest that the national authorities did not act in good faith (see Saadi, cited above, §§ 67-74).
14. As to the second period (paragraphs 4 and 5 above), the Court notes that the applicant was detained following a reasonable suspicion of having committed an offence and with the aim of bringing him before the investigating judge (paragraph 4 above). That suspicion relied on facts which would satisfy an objective observer of the likelihood that an offence had been committed (see Kavala v. Turkyie, no. 28749/18, § 128, 10 December 2019) (see paragraphs 5 and 7 above). Even considering the total period as a continuous detention, the applicant was ensured prompt and automatic judicial control within a period of time that did not exceed three days and is therefore acceptable (compare McKay v. the United Kingdom [GC], no. 543/03, § 47, ECHR 2006-X; and Oral and Atabay v. Turkey, no. 39686/02, § 43, 23 June 2009).
15. Lastly, as regards the lack of an interpreter and a lawyer during the applicant’s confinement in the transit zone at Lisbon airport, the Court notes that he signed a statement acknowledging that the information had been provided to him in English and a lawyer had been appointed to him on 21 December 2017 (paragraphs 2 and 3 above). The applicant was informed promptly of the legal and factual grounds for his confinement and the safeguards envisaged in Article 5 § 2 of the Convention were thus complied with (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 115, 15 December 2016).).
16. Accordingly, for all the above reasons, the complaints raised under Article 5 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.Complaints under Article 6 of the Convention
17. In so far as the applicant complained of the unfairness of the criminal proceedings owing to the lack of assistance from a lawyer and an interpreter in his interactions with SEF at Lisbon Airport, the Court refers to its findings above in this respect (see paragraph 15 above).
18. Furthermore, it observes that the judgment which pronounced the applicant’s conviction examined all the evidence available and did not rely exclusively on the content of his mobile phone or the seized documents. Essentially, the domestic courts considered the applicant’s statements after he was given the status of defendant, before the prosecutor and during the trial, rather than his statements during the administrative phase. Furthermore, they examined witnesses and the statements for future use. In sum, the seized documents and the content of the applicant’s mobile phone were neither exclusive nor decisive in determining the outcome of the proceedings (see ibidem, § 164).
19. In sum, the Court considers that it cannot be said that the measures taken at an earlier stage, viewed overall, weakened the applicant’s position to such an extent that the subsequent proceedings aimed at determining the merits of the criminal charge against him were rendered unfair (compare Alexandru-Radu Luca v. Romania, no. 20837/18, § 76, 14 June 2022).
20. Regarding the allegedly inaccurate translations, the Court notes that according to the documents in its possession, the translations were performed by an independent translator from the domestic courts’ official list and who was appointed by the court and who swore an oath. The domestic courts examined the applicant’s allegations regarding this issue (see, a contrario, Knox v. Italy, no. 76577/13, § 186, 24 January 2019) and there is nothing to suggest that the translations were inaccurate.
21. As to the statements for future use (see paragraph 6 above), they took place in court before the investigating judge and in the presence of the prosecutor and the applicant’s lawyer. They were recorded and transcribed. When the trial took place the three women were no longer in the detention centre with a view to being deported and their location was unknown. Therefore, there was a good reason for the non-attendance of the witnesses during the trial and the authorities cannot be accused of a lack of diligence (see Gani v. Spain, no. 61800/08, § 39, 19 February 2013).
22. Lastly, the Court finds that, in so far as the applicant complains of the domestic courts’ assessment of the facts and challenges the outcome of the proceedings, the complaint is of a “fourth-instance” nature. The applicant was able to make submissions before the courts which answered those submissions in decisions that do not appear arbitrary or manifestly unreasonable and there is nothing to suggest that the proceedings were otherwise unfair.
23. Accordingly, these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 November 2023.
Crina Kaufman Tim Eicke
Acting Deputy Registrar President
Full & Egal Universal Law Academy