Lexploria

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

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EGYPTAIR v. DENMARK

EGYPTAIR v. DENMARK

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