CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)