AS TO THE ADMISSIBILITY OF
Application No. 24956/94
by Momodou Lamin SABALLY
against Finland
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 6 July 1994 by
Momodou Lamin Sabally against Finland and registered on 22 August 1994
under file No. 24956/94;
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 a Gambian citizen, born in 1972. He is a student
residing in the Gambia. Before the Commission he is represented by
Mr. Daryl Taylor, a language teacher and translator in Helsinki.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant entered Sweden on 5 December 1993. He had planned
to stay first in Sweden and then visit his uncle in Finland before
returning to the Gambia. However, he changed his plans and he was
granted a tourist visa to Finland which was valid from 9 December 1993
to 9 January 1994.
The applicant entered Finland on 10 December 1993. Because his
holiday plans had changed he set about obtaining a refund for his
flight ticket from Finland to the Gambia. While waiting for the refund
he neglected to extend his visa for Finland.
On the morning of 14 January 1994 the applicant was sleeping at
a friend's home when three police officers came there looking for
another foreigner. The applicant was unable to provide any proof of his
identity since his passport and other documents were at his uncle's
home nearby.
The applicant told the police that his name was Jamil Mosa Mendy
and that he was a Liberian citizen born in 1975. He told them further
that he had come to Finland from Moscow on 11 January 1994 hiding in
a train.
The police decided to place the applicant in detention (säilöön-
otto) by virtue of sections 45 and 46 of the Aliens Act (ulkomaalais-
laki) since a decision concerning his deportation (käännyttäminen) was
now under consideration and since his identity had not been
established.
Section 45, subsection 1 of the Aliens Act provides that pending
a decision as to whether an alien shall be allowed to enter the country
or alternatively shall be returned or expelled, or pending some other
resolution of the matter, he may be ordered to report to the police
regularly. Other alternative means of controlling the alien's
whereabouts may also be ordered (subsection 2). If the above-mentioned
conditions apply and the alien's personal and other circumstances give
substantial grounds for believing that he will hide or commit criminal
offences in the country, or if his identity has yet to be established,
he may be detained instead of being subjected to the means of control
prescribed in section 45 (section 46, subsection 1).
On 17 January 1994 the applicant provided the police with
personal details which differed from his previous submissions. He now
submitted that he was Momodou Lamin Sabally from the Gambia and
maintained that his passport and other documents were at his uncle's
home. Two policemen visited the applicant's uncle but they did not find
the passport. On the morning of 18 January 1994 the applicant's uncle
came to the police station and supplied personal information about the
applicant. On this occasion the police allegedly told the applicant's
uncle that he could not attend the hearing concerning the detention
which was to take place in the afternoon.
On the afternoon of 18 January 1994 a hearing took place in the
City Court (raastuvanoikeus) of Helsinki. The applicant, assisted by
counsel, was present in court. There was also an interpreter who
interpreted the proceedings into English. The applicant's native
language is Mandinka. The police requested that the applicant be held
in detention as a decision concerning his deportation was under
consideration and as his identity was not clear. The police stated
further that the applicant had submitted information about his identity
which differed from the information he had given when he was detained
and that his passport had not been found.
On the basis of the available evidence the City Court found it
established that the requirements for detention pursuant to sections
45, 46 and 49 of the Aliens Act were fulfilled and prolonged the
applicant's detention for a period not exceeding two weeks.
Subsequently, the police continued to try to establish the
applicant's identity and were, inter alia, presented with his passport
on 19 January 1994. Following further investigation a deportation order
was issued and the applicant was deported to the Gambia on
26 January 1994.
COMPLAINTS
1. The applicant complains, under Article 6 of the Convention, that
the hearing held in the City Court did not constitute a fair hearing.
He maintains that in the hearing his civil right to liberty was
determined. He alleges that the police suppressed evidence bearing on
his identity by not advising him of his right to contact his uncle and
by giving false information to his uncle about the latter's ability to
attend the hearing. The applicant also maintains that he was denied an
opportunity to appoint a legal adviser of his own choosing and that the
legal adviser allocated at a very late stage had no realistic
opportunity to prepare his defence. He alleges that the circumstances
of the hearing were inconsistent with the principle of equality of
arms.
2. Under Article 5 of the Convention the applicant complains that
the hearing in the City Court was prejudiced to such a degree that it
could not constitute a procedure prescribed by law in the sense of
Article 5 para. 1 of the Convention.
3. Furthermore, the applicant complains, under Article 5 para. 1 of
the Convention, that his detention ceased to be lawful under Finnish
law on 19 January 1994 when the reason for holding him in detention,
i.e. the lack of clarity as to his identity, was allegedly removed.
4. Under Article 5 para. 4 of the Convention the applicant complains
that although his detention was allegedly unlawful after
19 January 1994 he was given no opportunity to challenge its legality
in court.
5. Finally, the applicant complains that Finnish legislation
contains no provisions regarding compensation for unlawful detention
and that the applicant does not have any legal remedy in respect of the
alleged violation of his right under Article 6 (Art. 6) to a fair and
public hearing. In these respects he invokes Article 5 para. 5
(Art. 5-5) and Article 13 (Art. 13) of the Convention.
THE LAW
1. The applicant complains that the hearing concerning his detention
did not constitute a fair hearing within the meaning of Article 6
(Art. 6) of the Convention which reads, as far as relevant, as follows:
"1. In the determination of his civil rights ... ,
everyone is entitled to a fair and public hearing ... "
The Commission recalls, firstly, that proceedings concerning
deportation of an alien do not involve a determination of a civil right
or a criminal charge within the meaning of Article 6 (Art. 6) of the
Convention (cf. No. 8244/78, Dec. 2.5.79, D.R. 17, p. 149).
However, the proceedings in the City Court did not concern the
question of deportation as such but the lawfulness of the applicant's
detention with a view to deportation, something which the Commission
finds falls under Article 5 para. 4 (Art. 5-4) of the Convention (cf.
below). In respect of Article 6 (Art. 6), however, it notes the
principles laid down in the Neumeister case (cf. Eur. Court H.R.,
Neumeister judgment of 27 June 1968, Series A no. 8, pp. 43-44, paras.
22-24) from which it follows that the guarantees provided for in
Article 6 (Art. 6) cannot be relied upon in proceedings which fall
within the scope of Article 5 para. 4 (Art. 5-4) of the Convention.
The Commission finds, accordingly, that Article 6 para. 1
(Art. 6-1) of the Convention is not applicable to the proceedings in
the City Court.
It follows that this part of the application is incompatible
ratione materia and must be rejected under Article 27 para. 2
(Art. 27-2) of the Convention.
2. Under Article 5 (Art. 5) of the Convention the applicant
complains that the hearing in the City Court was prejudiced to such a
degree that it could not constitute a procedure prescribed by law. The
Commission has examined this complaint under Article 5 para. 4
(Art. 5-4) of the Convention, taking into account also the applicant's
submissions under Article 6 (Art. 6).
Article 5 para. 4 (Art. 5-4) of the Convention reads:
"4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not
lawful."
The Commission recalls that although the judicial proceedings
referred to in Article 5 para. 4 (Art. 5-4) need not always be attended
by the same guarantees as those required under Article 6 para. 1
(Art. 6-1) for civil or criminal litigation, it is essential that the
person concerned should be afforded the fundamental guarantees of
procedure applied in matters of deprivation of liberty (cf. Eur. Court
H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 24,
para. 60).
In the present case the Commission notes that the lawfulness of
the applicant's detention was examined by the City Court in the
presence of the applicant and his counsel who had the opportunity to
submit to the Court everything which in their opinion was of relevance
to the outcome of the proceedings. The applicant was thus provided with
the benefit of an adversarial procedure (cf. Eur. Court H.R.,
Sanchez-Reisse judgment of 21 October 1986, Series A no. 107, p. 19,
para. 51). Taking into account the need for speed in cases concerning
detention the Commission cannot find that the applicant's counsel was
appointed at too late a stage. Furthermore, the Commission has not
found it established that any other fundamental procedural rights were
ignored in the proceedings before the City Court. Thus, it does not
find, in this respect, any appearance of a violation of Article 5
para. 4 (Art. 5-4) 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. As regards the applicant's complaint that his detention was,
under Finnish law, unlawful after 19 January 1994 which was the day on
which the police received his passport, the Commission has examined
this complaint under Article 5 para. 1 (f) (Art. 5-1-f) of the
Convention which reads:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
...
f. the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken
with a view to deportation or extradition.
..."
The Commission recalls that it should examine whether the person
was detained in accordance with national law for the purposes of
deportation. Article 5 para. 1 (f) (Art. 5-1-f) does not require the
Commission to provide its own interpretation on questions of national
law concerning the legality of the detention or deportation. The scope
of the Commission's review is limited to examining whether there is a
legal basis for the detention and whether the decision of the courts
on the question of lawfulness could be described as arbitrary in the
light of the facts of the case (cf. Zamir v. the United Kingdom, Comm.
Report 11.10.83, D.R. 40, p. 42).
The Commission notes that the City Court found, on
18 January 1994, that a decision concerning the applicant's deportation
was under consideration. It further found that the applicant's identity
had not been established. On this basis it found that the requirements
under Finnish law for detention with a view to deportation were
fulfilled. Accordingly, it decided to detain the applicant for a
period not exceeding two weeks.
In these circumstances the Commission concludes that the
applicant's detention until his deportation to the Gambia on
26 January 1994 was in accordance with Article 5 para. 1 (f)
(Art. 5-1-f) of the Convention, being the lawful detention of a person
against whom action was being taken with a view to deportation.
Consequently, the Commission does not find any appearance of a
violation of Article 5 (Art. 5) of the Convention in this respect
either.
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.
4. The applicant complains, under Article 5 para. 4 (Art. 5-4) of
the Convention, that he was given no opportunity to challenge the
lawfulness of his detention after 19 January 1994.
In this respect the Commission recalls that the lawfulness of the
applicant's detention was decided by a court and that this court would
have reconsidered the matter on its own initiative no later than two
weeks after its first decision.
In these circumstances the Commission finds that there is, in
this respect, no appearance of a violation of Article 5 para. 4
(Art. 5-4) 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.
5. Finally, the applicant complains that Finnish legislation does
not contain any provisions regarding compensation for unlawful
detention. He furthermore complains that he does not have any domestic
remedy for the alleged violation under Article 6 (Art. 6) of the
Convention.
Article 5 para. 5 (Art. 5-5) of the Convention reads:
"5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this
Article shall have an enforceable right to compensation."
Article 13 (Art. 13) of the Convention reads:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission, taking into account its findings above, finds no
appearance of a violation of Article 5 para. 5 (Art. 5-5) of the
Convention or Article 13 (Art. 13) 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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy