Lexploria

Application No. 21580/93

by D.B.

against Finland

The European Commission of Human Rights sitting in private on

7 March 1996, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 March 1993 by

D.B. against Finland and registered on 25 March 1993 under file

No. 21580/93;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 12 December 1995 and the observations in reply submitted

by the applicant's counsel on 11 February 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Liberian citizen, born in 1970. Before the

Commission he is represented by Markku Fredman, a lawyer practising in

Helsinki.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Particular circumstances of the case

On 2 February 1993 at 22.55 hours the applicant was apprehended

by the City Police of Helsinki. When requested by a police officer to

identify himself, he had been unable to present any official document

showing his particulars. It transpires from a subsequent detention

order of 3 February 1993 (see below), that he was therefore detained

for identification purposes pursuant to section 19 of the 1966 Police

Act (poliisilaki 84/66, polislag 84/66).

According to the Government, the legal basis for the applicant's

detention as from 2 February 1993 was actually section 13, subsection

2 of the Police Act and not the erroneously indicated section 19.

The applicant was detained in a cell intended for suspects at the

police headquarters of Pasila, Helsinki.

On 3 February 1993 at 19.30 hours the deprivation of the

applicant's liberty was converted into detention pursuant to sections

45, 46 and 47 of the 1991 Aliens Act (ulkomaalaislaki 378/91,

utlänningslag 378/91). The aim of this detention was to have the

applicant expelled.

On 5 February 1993 the City Court (raastuvanoikeus,

rådstuvurätten) of Helsinki prolonged the applicant's detention under

the Aliens Act by two weeks, since he had no residence permit in

Finland, was incapable of supporting himself and could be expected to

evade his future expulsion. The applicant was transferred to the

Helsinki County Prison.

On 7 February 1993 the applicant requested asylum in Finland.

On 19 February 1993 the City Court again prolonged the

applicant's detention by two weeks but on 5 March 1993 it rejected a

further prolongation request. It appears that the applicant was then

released. In the autumn of 1993 he left Finland for Sweden.

Relevant domestic law

1. Detention for identification purposes

According to the Police Act, everyone shall, if requested,

provide a police officer on duty with information necessary for the

identification of the person. A police officer may apprehend, for

identification purposes, a person whose identity is unknown, who

refuses to provide information enabling his identification or who gives

information which is presumably false. An apprehended person must be

released as soon as he or she has been identified and at the latest

within 24 hours (section 13, subsection 2, as amended by Act

no. 453/87).

2. Detention for preventive purposes

A police officer has the right to remove or apprehend and

temporarily detain a person who makes noise or otherwise behaves in a

manner causing immediate danger to public order or security or who

issues threats or otherwise behaves in a manner leading to the

conclusion that he is likely to commit an offence. Detention for

preventive purposes may last only as long as the above-mentioned danger

or the likelihood that the detainee would commit an offence exists. At

any rate, the detainee must be released within 24 hours (section 19 of

the Police Act, as amended by Act no. 453/87).

3. Detention in accordance with the Aliens Act

Pending a decision as to whether an alien shall be allowed to

enter the country, alternatively be returned or expelled, or pending

another resolution of the matter, he or she may be ordered to report

to the police regularly (section 45, subsection 1 of the Aliens Act,

as in force at the relevant time). If there are substantial grounds for

believing that he or she will go into hiding or commit criminal

offences in the country, the alien may be detained (section 46).

Up to 1 January 1994 an alien detained in accordance with the

Aliens Act was to be placed in facilities especially reserved or

otherwise suitable for this purpose (section 47, as in force at the

relevant time). According to the relevant travaux préparatoires, such

detention could only for particularly weighty reasons be implemented

on premises for suspects or in a prison (Government Bill no. 47/90,

p. 19). Detention pursuant to the Aliens Act was otherwise to be

governed by the provisions for the treatment of prisoners on remand,

as far as these were applicable (section 47, as in force at the

relevant time).

As of 1 January 1994 an alien detained in accordance with the

Aliens Act shall be placed in facilities suitable for this purpose

(section 47, as amended by Act no. 639/93). According to the relevant

travaux préparatoires, the economic situation in Finland had rendered

it impossible to implement detention under the Aliens Act in facilities

especially reserved for this purpose. Therefore it was now, as a rule,

to be implemented in a prison or on detention premises of the police

(Government Bill no. 293/92, p. 11).

The competent court shall be notified of a detention in

accordance with the Aliens Act at the latest on the day after it has

been ordered, if necessary first by telephone and subsequently by a

confirmation in writing. The court must consider the grounds for the

detention without delay and at any rate within a period of four days

from the detention. The court shall proceed as when considering a

request for detention on remand (section 48 of the Aliens Act).

COMPLAINTS

1. The applicant complained that the deprivation of his liberty from

2 February 1993 at 22.55 hours to 3 February 1993 at 19.30 hours for

the purpose of verifying his identity violated Article 5 para. 1 of the

Convention. He considered that he was not a danger to public order or

security and had not threatened to commit a crime. The conditions for

his detention in accordance with section 19 of the Police Act were

therefore not met.

2. The applicant furthermore complained that the deprivation of his

liberty as from 3 February 1993 at 19.30 hours pursuant to the Aliens

Act was also in violation of Article 5 para. 1. He submitted that no

particularly weighty reasons existed for not implementing his detention

on premises prescribed in section 47 of the Aliens Act.

3. The applicant finally alleged that the successive application of

the Police Act and the Aliens Act circumvented the time-limit for the

court review prescribed in section 48 of the Aliens Act. Since he was

detained on 2 February 1993 the City Court of Helsinki should have been

informed of his detention at the latest on 3 February and not on

4 February 1993. He again invoked Article 5 para. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 March 1995 and registered

on 25 March 1993.

On 11 September 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

On 20 November 1995 the applicant's representative informed the

Commission that he was unaware of the applicant's whereabouts.

The Government's written observations were submitted on

12 December 1995, after an extension of the time-limit fixed for that

purpose. The applicant's representative replied on 11 February 1996.

REASONS FOR THE DECISION

The applicant complains that the deprivation of his liberty in

February 1993 was in violation of Article 5 para. 1 of the Convention.

The Government principally submit that the application should be

struck off the Commission's list of cases in pursuance of Article 30

para. 1 of the Convention. The applicant's behaviour shows that he does

not intend to pursue his application and no particular reason would

justify the further examination of the case in such circumstances. The

Government stress that section 47 of the Aliens Act was amended

subsequent to the applicant's detention and no longer requires that an

alien detained in accordance with this law should be placed in

facilities especially reserved or otherwise suitable for this purpose.

The applicant's counsel opposes a strike-off, fearing that it

might be impossible for his client to inform him of his present

whereabouts. In addition, general considerations strongly militate in

favour of pursuing the Commission's examination, since the detention

of asylum seekers is a widely debated issue in Europe. It is true that

the Aliens Act was amended so as to avoid that asylum seekers are

detained unlawfully. However, this amendment weakened their protection

and in Finland most detained asylum seekers are now being held in

isolation for 23 hours a day.

The Commission notes that the applicant has not informed his

counsel before the Commission of his whereabouts since he left Finland

in 1993. In these circumstances the Commission finds it reasonable to

conclude pursuant to Article 30 para. 1 (a) of the Convention that he

does not intend to pursue his application.

In accordance with Article 30 para. 1 in fine the Commission must

also determine the possible existence of special circumstances

regarding respect for Human Rights, as defined in the Convention, which

would require a further examination of the present application. Such

a question can arise in particular where, through the applicant's

individual case, the Commission is concerned with the legislation,

legal system or practice of the respondent State.

There is no appearance of any special circumstances of the

above-mentioned character which would require that the examination of

the present application be pursued. The Commission observes, in

particular, that section 47 of the Aliens Act, the application of which

was challenged by the applicant, was amended subsequent to his

detention. As regards counsel's further allegation that asylum-seekers

in Finland are currently being detained in isolation for 23 hours a

day, it has not been argued that such detainees are being prevented

from lodging their own applications with the Commission.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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D. B. v. FINLAND

D. B. v. FINLAND

LEXI