Lexploria

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)

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SABALLY v. FINLAND

SABALLY v. FINLAND

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