CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.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. 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