A. v. SWEDEN
Doc ref: 11531/85 • ECHR ID: 001-385
Document date: October 7, 1987
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AS TO THE ADMISSIBILITY OF
Application No. 11531/85
by A.A.
against Sweden
The European Commission of Human Rights sitting in private
on 7 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 25 February 1985
by A.A. against Sweden and registered on 20 April 1985
under file N° 11531/85;
Having regard to:
- the first report provided for in Rule 40 of the Rules of
Procedure of the Commission,
- the Government's written observations of 13 March 1986 and the
applicant's observations in reply of 5 June 1986,
- the second report provided for in Rule 40 of the Rules of
Procedure,
- the Commission's decision of 13 July 1987 to adjourn the
examination of the case,
- the third report provided for in Rule 40 of the Rules of
Procedure.
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as presented by the parties, may be
summarised as follows.
The applicant is a Turkish citizen born in 1943. He is
resident at N., Sweden, and is represented before the Commission
by Mr Tomas V. Wellton, a lawyer practising in Stockholm.
The applicant came to Sweden in September 1980. After about
ten months he obtained a permit to stay in Sweden on political
grounds. However, he was not granted refugee status under the 1951
Geneva Convention relating to the status of refugees.
The present case relates to one of twelve similar cases
handled by the Swedish authorities following a very serious event in
Uppsala in June 1984. A former member of the Partiya Karkeren
Kurdistan (PKK) was then shot down in cold blood in a market place in
Uppsala. The murderer was apprehended and sentenced to imprisonment
for life and expulsion. In connection with the investigation of the
murder the police found that some of the persons whose names had
appeared in the police investigation could be suspected of being
active in an organisation which appeared to be a cover for PKK in
Sweden. This led the authorities to take action in accordance with
the Aliens Act (utlänningslagen).
However, on 5 September 1984, the County Prosecutor
(länsåklagaren) of Uppsala decided to discontinue criminal
investigations against any of the individuals who were later detained
under the Aliens Act. The applicant was himself never suspected or
contacted by the police or the prosecutor of Uppsala.
On 18 September 1984 the National Police Board
(rikspolisstyrelsen) decided to take the applicant into custody
(förvar) under Section 50 of the Aliens Act, the reason being that
that there were probable causes for expelling the applicant under
Section 47 of the Aliens Act and that it could be feared that he would
evade.
Section 50, para. 1, of the Aliens Act reads:
"An alien may be taken into custody if there is probable
cause for refusal of entry or expulsion under Sections 38,
43, 47 or 48 or if a question arises as to the enforcement
of such a measure or expulsion as a result of a criminal
offence. Custody is decided by the authority which deals
with the refusal of entry or the expulsion matter or the
enforcement matter. Custody may only be ordered however if,
in view of the alien's personal circumstances and other
conditions, it may reasonably be feared that he will evade
or engage in criminal activity or if the alien's identity is
unclear ..."
Section 47 reads:
"An alien may be expelled from the realm if the conditions
in Section 30 are at hand.
A decision on expulsion according to the first paragraph is
decided upon by the Government. In such cases a hearing
should take place. An opinion should be obtained from the
National Board of Immigration (statens invandrarverk), if
there is no obstacle to it on account of the matter being
extremely urgent."
Section 30 reads:
"An alien who arrives in Sweden should be refused entry, if
there are substantial reasons to assume that he belongs to or
acts for such an organisation or group as referred to in the
second paragraph and if in addition, in view of what is known
about his previous activities or otherwise, it may be feared
that he, in the realm, will participate in such activities as
referred to in that paragraph.
The provisions in the first paragraph refer to an organisation
or group in respect of which it is feared, in view of what is
known about its activities, that it will resort to violence,
threats or coercion outside its home country to achieve political
aims and thus commit such acts in this country."
On 21, 22 and 25 September 1984, the applicant was
interrogated by the National Police Board.
Section 53 of the Aliens Act provides, inter alia:
"An alien may not, unless there are extraordinary reasons
(synnerliga skäl) for it, be kept in custody for a longer
period than two weeks or, ....
A decision to keep an alien in continued custody is each
time valid for no longer than two weeks from the date of the
decision or, ..... Any decision about continued custody for a
longer period than indicated in the first paragraph should be
preceded by a hearing."
On 28 September 1984 there was a hearing before the National
Police Board concerning the continued custody of the applicant.
Section 57 of the Aliens Act provides that such a hearing should take
place before the authority which deals with the matter. This section
reads:
"The hearing shall be held before the authority which deals
with the matter. The National Board of Immigration may
however decide that the Regional Administrative Court
(länsrätten) or the County Administrative Board
(länsstyrelsen) shall hold the hearing in a matter which
the National Board of Immigration deals with and in
that context decide that others than the alien should be
heard. In cases which are dealt with by the Government, the
responsible Minister, or a public servant designated by the
Minister, may decide on a hearing and on the hearing of
others than the alien as well as, unless the second
paragraph applies, designate the court or the administrative
authority which should hold the hearing.
In matters concerning refusal of entry under Section 30 or
expulsion under Sections 47 or 48 the hearing shall be held
before the Stockholm District Court (tingsrätt), unless
specific reasons dictate otherwise."
According to Section 58 of the Aliens Act the authority which
holds the hearing may, where necessary, appoint a police authority or
another person to act as official counsel (allmänt ombud) at the
hearing.
The applicant maintains that at the hearing on 28 September
the National Police Board appointed the head of the anti-terrorist
department within the National Police Board as official counsel. The
applicant submits that at the hearing it was the official counsel who
directed the hearing while the representatives of the police, who were
subordinates to the head of the said department, did not utter a
word. In the applicant's view the official counsel had appointed
himself as chairman. The Government do not accept this. They
maintain that there was no official counsel present. Such a counsel
was not appointed until 15 October 1984.
Section 60 of the Aliens Act provides that, at the hearing,
the circumstances which could have an influence on the decision should
be carefully examined. The alien should be given the possibility of
expressing his opinion and stating his view on the circumstances
invoked.
The applicant submits that at the hearing no single condition
of any real importance was mentioned by the National Police Board.
Instead the Board only went through a standardised questionnaire which
was the same for all eleven apprehended individuals. The
interrogation is confidential. The questions were of the following
nature:
What is your identity? Have you worked? How is your family
situation? In which organisation have you been politically active?
What sort of contacts will you make if you are released? Will you
discuss the custody with anybody? Is there a wish of retaliation on
you from political groups? Are you prepared to report to the Swedish
authorities about any criminal activity you might get to know about
after your release?
On 1 October 1984 the National Police Board, after having
interrogated the applicant again, decided that his custody should
continue, since the reasons therefor still persisted and there were
extraordinary reasons for it.
On 2 and 3 October 1984 the applicant was interrogated by the
National Police Board.
On 2 October 1984 the applicant appealed to the Administrative
Court of Appeal (kammarrätten) of Jönköping against the custody
decisions of 18 September and 1 October. The letter of appeal was
sent by telefax and was received at the Court on the same day.
On 5 October 1984 the National Police Board transferred the
matter of expulsion to the Government with a request that the
applicant be expelled according to Section 47 of the Aliens Act.
On 8 October the Under-Secretary of the competent Ministry
ordered that a hearing pursuant to Section 53 para. 1 of the Aliens
Act be held before the Administrative Court of Appeal.
On 11 October 1984 the Administrative Court of Appeal held a
hearing in camera and, on 12 October, it delivered judgment rejecting
the appeal against the decision of 1 October with the following
reasons:
"As the National Police Board has found there are probable
causes that (the applicant) will be expelled under
Section 47 of the Aliens Act. It can further be feared
that he will evade or engage in criminal activities here.
Accordingly, there is reason for taking him into custody.
As a result of what has been established in the case
there must also be considered to be extraordinary
reasons for keeping (the applicant) in custody."
As regards the decision of the National Police Board of 18
September, the Court noted that the decision was not valid any longer
and should not lead to any further measures.
The applicant appealed to the Supreme Administrative Court
(regeringsrätten), but withdrew his appeal when the matter of his
expulsion was referred to the Government. The Supreme Administrative
Court struck the case off its list on 4 December 1984.
In the meantime, on 15 October 1984, the responsible Minister,
Mrs Anita Gradin, decided that the custody of the applicant should
continue. A similar decision was taken on 26 October 1984, following
a hearing before the Stockholm District Court on 25 October.
On 6 November 1984 the Stockholm District Court held a hearing
pursuant to Section 53 para. 2 of the Aliens Act.
On 12 November 1984, the then responsible Minister, Mr. Sten
Wickbom, decided that the applicant's detention should continue.
The applicant appealed against this decision to the Supreme
Administrative Court requesting that he be released immediately.
On 22 November 1984, the Supreme Administrative Court upheld
the decision of the Minister.
In the meantime, on 16 and 20 November 1984, the Stockholm
District Court held another hearing.
On 26 November 1984 the responsible Minister decided that the
custody of the applicant should continue.
On 28 November 1984, the National Board of Immigration, in a
letter to the Government, stated that the applicant could not be
expelled to Turkey.
On 5 December 1984 a further hearing was held before the
Stockholm District Court.
On 10 December 1984 the Government decided to expel the
applicant. However, he was permitted to remain in Sweden on the
ground that he might be subjected to political persecution if
expelled to Turkey. Consequently the applicant was released.
However, a duty of regular reporting and restrictions
as to travelling as well as a prohibition to change domicile and
work were imposed on him.
The rules regarding the enforcement of expulsion orders are
contained inter alia in Sections 77, 78 and 81 of the Aliens Act.
They provide as follows:
Section 77: "When a refusal-of-entry or an expulsion
order is put into effect, the alien may not be sent to a
country where he risks political persecution. Nor may the
alien be sent to a country where he is not safeguarded
against being sent on to a country where he risks such
persecution."
Section 78: "Notwithstanding the provisions of Section 77,
an alien may be sent to a country as referred to in that
Section if he cannot be sent to any other country and if he
has shown, by committing a particularly grave criminal
offence, that public order and security would be seriously
endangered by his being allowed to remain in this country,
and if the persecution which he is liable to suffer in that
country does not involve danger to his life and is not of
a particularly grave nature in any other respect.
If an alien has engaged, in Sweden or elsewhere, in
activities endangering the national security of Sweden, and
if there is reason to suppose that he would continue to
engage in such activities in this country, he may be sent
to a country as referred to in Section 77 if he cannot be
sent to any other country."
Section 81: "An alien who is refused entry shall be sent
to the country from which he entered into Sweden. An alien
who is expelled shall be sent to his home country. If the
alien's home country cannot be ascertained, he shall be
sent to the country from which he entered into Sweden.
If the decision cannot be put into effect in the manner
indicated in paragraph one or if there are other special
reasons why it should not thus be put into effect, the
alien may be sent to the country which is considered
most appropriate.
Notwithstanding cf. paragraphs one and two, an alien coming
to Sweden from one of the other Nordic countries may be sent
to one of those countries in keeping with an agreement
entered into by the Government together with the said
countries."
COMPLAINTS
The applicant complains that he has been the victim of
violations of Article 5 paras. 1 (f), 3 and 4, Article 6 paras.
2 and 3 (d) and Article 14 of the Convention. He also claims
compensation under Article 5 para. 5 of the Convention.
1. The applicant submits that it is a violation of the Convention
that the same authority is empowered to decide whether its own
decision should be upheld. He refers to the decision of the National
Police Board of 1 October 1984, and he maintains that the absence of a
hearing before the Stockholm District Court prior to that decision was
contrary to Section 57 of the Aliens Act.
2. The applicant submits that the hearing before the National
Police Board was a nullity and in breach of Article 5 para. 4 of the
Convention, in particular in view of the manner in which the official
counsel dominated the hearing.
3. The applicant alleges that the National Police Board has
deliberately infringed Sections 57 and 60 of the Aliens Act and that he
has therefore not had a substantial examination of the question of his
custody. This is alleged to constitute a breach of the Convention.
4. The applicant submits that in connection with the
investigation of the matter he has requested the hearing of certain
witnesses, but this has been refused. It is alleged that this is a
breach of Article 6 para. 3 (d) of the Convention.
5. The applicant complains that it took eleven days before the
Administrative Court of Appeal delivered judgment in the case of his
deprivation of liberty. The applicant submits that this is a breach
of Article 5 para. 4 of the Convention.
6. The applicant further complains that the manner in which the
police authority has dealt with the case and the procedure at the
hearing before the matter was transferred to the Government constitute
breaches of Article 5 para. 1, sub-para. f and paras. 3 and 4 of the
Convention. The applicant refers to the fact that a reason for his
continued custody was a risk of continued criminal activity. Since
this was so, the applicant maintains that the provisions in the
Convention concerning individuals suspected of a criminal offence
should apply.
7. The applicant also alleges that he has been discriminated
against on account of his national origin and political opinions in
breach of Article 14 of the Convention.
8. As regards Article 5 para. 1 (f) the applicant submits
that he has been in custody from 18 September to 10 December 1984
although it must have been obvious to the Government that he could
not be expelled to his home country. Accordingly there could never
have existed any probable cause for expulsion. The applicant moreover
submits that his custody was unlawful. Article 5 requires that the
deprivation of liberty is in accordance with a procedure prescribed by
law and that it occurs as part of the procedure for expulsion. It is
submitted that the aim of the applicant's custody cannot have been his
expulsion since it was obvious that he could not be expelled.
9. The applicant finally claims compensation referring to Article 5
para. 5 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 20 February 1985 and
registered on 20 April 1985.
On 4 December 1985 the Commission decided to communicate the
application to the Government for written observations on the
admissibility and merits of the application limited to the complaints
under Article 5 paras. 1 and 4 of the Convention.
The Government's observations were received by letter dated 13
March 1986 and the applicant's observations in reply were received by
a letter dated 5 June 1986.
On 13 July 1987 the Commission examined the admissibility of
the application. It decided to adjourn the examination of the case.
SUBMISSIONS OF THE PARTIES
A. The Government
1. Swedish legislation
The basic provisions concerning the right of aliens to enter
and to remain in Sweden are compiled in the 1980 Aliens Act. As far
as is relevant to the applicant's case, the Act defines the conditions
on which an alien may be expelled from the country, as well as the
criteria to be met before an alien may be taken into custody. In
addition to these substantive provisions, the Act also contains
certain procedural rules and rules related to the enforcement of
decisions under the Act.
As far as is relevant to the applicant's case, the Act deals
with three different categories of questions, i.e. the question of
expulsion, the question of coercive measures and the question of
enforcement. Although to some extent the same procedural rules apply
to the handling of the three questions, there are differences that
need to be observed. For this reason, and since the applicant has
mixed them up in a manner that is not only misleading but also partly
inaccurate, the Government will deal separately with the three
categories of questions.
1.1 Provisions concerning expulsion
Under Section 47 of the Act, an alien may be expelled under
certain circumstances specified in Section 30. According to the
travaux préparatoires, the purpose of these provisions was to reduce
the risk of terrorist activities in the country by taking measures
against a very limited group of aliens belonging to, or working for,
organisations that by previous actions had engaged in a systematic
use of violence, threats of coercion for the purpose of achieving
political goals. Moreover, it was underlined, and it is also
indicated by the wording of Section 30, para. 1, that for an alien to
be subject to these provisions, it is not enough that he belongs to
such an organisation, but there also have to be grounds for assuming
that he himself has previously taken part in terrorist activities or
is under suspicion of such activities, or that by holding a leading
position or otherwise, he plays a rather active role in the activities
of the organisation.
A decision under Section 47 of the Act is to be taken by the
Government. Before any such decision is taken, there shall be a
hearing (Section 47 para. 2). Unless there are special reasons
against it, the hearing shall be held before the District Court of
Stockholm (Section 57 para. 2). At the hearing a careful
investigation shall be carried out of the circumstances which may have
a bearing on the determination of the issue of expulsion, and the
alien shall be given an opportunity of stating his position and of
commenting on the circumstances invoked in the matter (Section 60
para. 1).
1.2 Provisions concerning coercive measures
Under the provisions laid down in Section 50 of the Act, an
alien may be detained if there is probable cause for expulsion
pursuant to Section 47. According to the same section, a detention
order is to be taken by the authority dealing with the question of
expulsion.
In case the matter is before the Government, however, the
responsible Minister may take a decision on detention (Section 50
para. 3).
Unless there are extraordinary reasons, an alien may not,
prior to an expulsion order, be detained for more than two weeks
(Section 53 para. 1). Furthermore, no such detention order shall be
valid for more than two weeks from the date of issue, and any decision
concerning detention in excess of two weeks shall be preceded by a
hearing.
As regards such a hearing, most of the procedural rules
governing the hearing in an expulsion matter, among them those
contained in Section 59 and Section 60 para. 1, are equally
applicable. However, there are some differences, and the Government
in particular point out the following. As has been stated above, the
hearing in cases concerning expulsion should in general be held before
the District Court of Stockholm. A hearing in a matter concerning the
detention of an alien, on the other hand, should in general, according
to Section 57 para. 1, be held before the authority dealing with the
matter. Moreover, while the same section for certain cases provides
for a possibility to have this hearing held before another authority
or court, no such possibility is provided for in case the matter is
dealt with by a police authority.
1.3 Provisions concerning enforcement
Basic provisions concerning the enforcement of an expulsion
order relevant to the applicant's case are contained in Sections 73
and 77 of the Act. In the present context, only a few remarks need to
be made in respect of these provisions. In the Act, the circumstances
relevant to the question of enforcement are carefully separated from,
and accordingly have no bearing on, the question of the expulsion as
such. This is also explicitly observed in the travaux préparatoires
by a statement according to which, when the necessary conditions are
met, an expulsion order should be issued even in case enforcement
would be excluded on the ground that the alien would qualify for the
status of refugee.
1.4 Appeals against detention orders
According to Section 67 para. 1 of the Act, an order under
Section 50 for the detention or continuing detention of an alien may
be appealed to the Administrative Court of Appeal. A decision by
this Court in respect of such an order may, under Sections 33 and 34
of the 1971 Act on Administrative Procedure (förvaltnings-
processlagen), be brought before the Supreme Administrative Court.
In case an order for the detention or continuing detention of
an alien has been issued by the responsible Minister in accordance
with Section 50 para. 3 of the 1980 Act, the matter may also be
brought before the Supreme Administrative Court (Section 67 para. 3).
In such a case, leave to appeal is not required.
2. The Admissibility
The Government have no objection to make under Article 26 of
the Convention.
However, with reference to what is submitted below, the
Government submit that the complaint should be declared inadmissible
for being manifestly ill-founded.
3. The Merits
3.1 Article 5 para. 1
The Government observe that Article 5 para. 1 does not
guarantee any substantive rights in respect of the expulsion as such
of an alien. Furthermore, as to the deprivation of liberty, the
requirements of this Article are met when a decision to this effect is
taken in accordance with a procedure prescribed by law, is lawful and
is taken with a view to deportation or extradition. In this context,
the notions "prescribed by law" and "lawful" could only be viewed as
referring to the relevant domestic law.
3.1.1 A procedure "prescribed by law"
The basic procedural rules to be followed in a matter
concerning the deprivation of liberty have been outlined above. As
follows from the facts, every decision in respect of the custody of
the applicant was taken by the authority competent under Section 50
para. 1 of the Aliens Act and, when required under Section 53 para. 2
of the Act, only upon the completion of a hearing. As regards the
hearings, there is, save for the allegations made by the applicant,
nothing to indicate that they were not properly carried out in
accordance with the relevant legal provisions.
Moreover, for the following reasons, the Government submit
that the allegations made by the applicant expose a total lack of
merits.
Although this already seems to have been observed by the
Secretariat of the Commission, the Government would firstly
clarify that the applicant's suggestion, that the hearing of 28
September 1984 should have been held before the District Court of
Stockholm rather than the National Police Board, is built on a
misconception of Section 57 of the Act. The scope of paragraph 2 of
this Section is explicitly limited to proceedings concerning
refusal-of-entry cases coming under Section 30 or expulsion cases
coming under Section 47 or 48 of the Act. The hearing of
28 September 1984 was held in a matter concerning custody of the
applicant under Section 53 of the Act. Such a hearing shall,
according to the main rule in Section 57 para. 1, be held before the
authority dealing with the question, ie. in the present case the
National Police Board.
The applicant further submits that the manner in which the
hearing of 28 September 1984 was formally conducted was such as to
render the hearing "a nullity". The thrust of this allegation seems
to be the conception that the police officer appointed to represent
the public pursued his mission in a very active manner, whereas the
official presiding at the hearing played a very passive role. The
Government observe that there is nothing in the complaint to indicate
that the applicant was not given a fair opportunity of presenting his
case. Moreover, there is no legal provision governing this formal
aspect of the hearing. Accordingly, even assuming that the hearing
was conducted in the way suggested by the applicant, this does not
justify the conclusion that the proceedings were not carried out "in
accordance with a procedure prescribed by law".
The applicant also alleges that nothing of relevance to the
matter was dealt with at the hearing. In the Government's view, this
allegation is obviously unfounded. Thus, some of the categories of
questions referred to by the applicant, for the purpose of
substantiating the allegation, in the Government's opinion would
appear to turn on the very core of the matter. Among the questions
thus referred to are for instance some concerning group-belonging and
other personal circumstances of the applicant. As appears from
Section 30 and Section 50 para. 1 of the Aliens Act, such questions
are indeed crucial for the determination of whether the applicant
should be kept in custody. It should also be mentioned that the
applicant's legal representative was free to comment on the matter at
the hearing, which lasted for about one hour. There is nothing to
indicate that the applicant, or his legal representative, at any time
during the hearing expressed any views in respect of the manner in
which the hearing was being conducted.
In this context, the Government would like to correct another
misleading statement by the applicant. According to the applicant,
the National Police Board in respect of its decision of 1 October
1984, prior to which the hearing now in question was held, was
supposed to reconsider the correctness of its own decision of
18 September 1984. This is not correct. The issue before the Board
in respect of the decision of 1 October 1984 was instead whether at
that time the circumstances were still such as to require that the
applicant be kept in custody. It should be added that the applicant
could have had the decision of 18 September 1984 reviewed by the
Administrative Court of Appeal, but that he did not avail himself of
this opportunity until the decision, by being superseded by the one of
1 October 1984, had lost its legal force.
In view hereof, the Government submit that there is nothing in
the complaint to even remotely indicate that the proceedings were not
properly carried out in accordance with the relevant legal provisions.
3.1.2 A "lawful" detention
The thrust of this part of the complaint seems to be that,
since the decision of expulsion could not be expected to be enforced,
there was no legal ground for keeping the applicant in custody. For
the following reasons, the Government submit that this reasoning is
built on a misconception of the relevant provisions of the Aliens Act.
The legal grounds for taking an alien into custody are set
forth in Section 50 para. 1 of the Act. As regards an expulsion
matter, and as far as is relevant to the applicant's case, two
conditions must be met; there has to be probable cause for
expulsion and the circumstances need to be such as to warrant a
fear that the alien would evade or engage in criminal activities.
As to the first condition, the plain wording of the text, as
well as the explicit reference to the Sections concerning expulsion
and the absence of any reference to those dealing with enforcement,
makes it perfectly clear that no more is required than a finding that
there is probable cause for an expulsion order under Section 47. This
fact alone yields the inevitable conclusion that in this context the
question of whether a possible expulsion order could ultimately be
enforced is of no relevance. This is made even more apparent by the
fact that in this Section, as elsewhere in the Act, a clear
distinction is made between questions of expulsion and those
concerning enforcement. Consequently, a detention order in an
expulsion matter is, and remains, consistent with this Section as
long as the circumstances are such as to justify the assumption that
an expulsion order will ultimately be issued in the matter. In the
applicant's case, it is not even alleged that this requirement was not
met.
Moreover, an expulsion order under Section 47 is of great
importance from a procedural point of view, even if the decision
cannot be enforced immediately. Such a decision can justify certain
coercive measures, and the question of enforcement of the decision can
be raised at any time.
Furthermore, even assuming that Section 50 of the Act could be
construed so as to exclude the possibility of keeping an alien in
custody once it has been established that a possible expulsion order
could not be enforced, there is nothing to suggest that Section 50 of
the Act was not, nevertheless, complied with.
The Government recall that the decision not to enforce the
expulsion order for the time being was taken on 10 December 1984 and
that the applicant was then promptly released. It appears from
Sections 77, 78 and 81 of the Act that a number of delicate issues
need to be elaborately considered before any definite position could
be taken as regards the question of enforcement. In the applicant's
case, some of these issues were closely related, or even identical, to
those that needed to be considered in the expulsion matter as such.
In respect of these issues, therefore, it is most likely, and
there is nothing to suggest anything to the contrary, that no final
view could have been reasonably foreseen in the possible enforcement
matter before the action had proceeded so far as to allow a
determination of the question of expulsion. In respect of the latter
question, it is not even alleged by the applicant that a decision
could have been reached prior to 10 December 1984.
In this context, the Government note the applicant's
contention that, in view of the written statement submitted by the
National Board of Immigration on 28 November 1984, such a conclusion
was inevitable at least as of that date. The Government submit that
the opinion expressed by the Board has no binding effect in respect of
the final determination of the question and that, therefore, no
conclusive inference could be drawn from such a statement.
Furthermore, the Board's statement was limited to expressing the
opinion that, under Section 77 of the Aliens Act, the applicant could
not be sent to Turkey or to a country where he could run a risk of
being sent to Turkey. As appears from Sections 78 and 81 of the Act,
there were still other questions to be considered before it could be
concluded that an expulsion order should not be carried out.
The other condition that must be met according to Section 50
of the Act before an alien can be taken into custody is that there
are good grounds for assuming that he would evade or engage in
criminal activities. In the applicant's case, the decisions of 18
September and 1 October 1984 were based only on the assumption that he
might evade, whereas the other, subsequent decisions were based also
on the additional ground that it could be feared that he would engage
in criminal activities.
As regards the assumption that the applicant would engage in
criminal activities, no other circumstances seem to have been invoked
in support of the complaint than the fact that the prosecutor decided
not to bring a criminal charge against the applicant. The Government
observe that there is no requirement under Section 50 of the Act that
the deprivation of liberty be preceded by the bringing of a criminal
charge against the alien. The fact that the prosecutor did not
consider that the criminal charge could successfully be brought does
not as such mean that the requirement of reasonable fear in Section 50
of the Act could not, nevertheless, be met. Finally, the decision of
the prosecutor merely concerned suspicions of certain crimes in the
past, whereas the question in the matter of custody was whether, in
view of what was known of the applicant, there was a risk that he
might engage in criminal activities in the future.
As regards the assumption that the applicant would evade, the
thrust of the applicant's allegation is that, since the decision of
expulsion could not be expected to be enforced, there was nothing to
evade from. The Government submit that this reasoning is built on a
misconception of Section 50 of the Act and partly supported by an
incorrect statement of the facts.
For this requirement to be met, it is enough that there is
cause for fearing that the alien will evade. Accordingly, and
contrary to what has been suggested by the applicant, there is no
additional requirement that the evasion be for the exclusive purpose
of avoiding the enforcement of an expulsion order. Consequently, this
provision is equally applicable if, for instance, it could be feared
that an alien by evading would avoid that the question of his
expulsion as such be properly considered and determined.
In this context, the Government draw the Commission's
attention to the fact that the applicant, as far as the present issue
is concerned, has consistently misrepresented the relevant decisions.
Thus, in presenting the grounds for the decision of the National
Police Board of 18 September 1984 and the judgment of the
Administrative Court of Appeal of 12 October 1984, the applicant has
alleged that one of the grounds was the fear that the applicant would
"evade from the enforcement" of a possible expulsion order. The fact
is, however, that in this respect neither the decision, nor the
judgment was based on anything else than the fear that the applicant
would "evade".
In view of the above, the Government submit that there is
nothing in the complaint to substantiate an allegation that the
decisions concerning the custody of the applicant were not properly
taken in accordance with the requirements laid down in Sections 50 and
53 of the Aliens Act.
3.1.3 With a view to deportation or extradition
In the Government's view, for this condition to be met, no
more is required than a finding that an action has been taken with a
view to arriving at a decision of deportation or extradition.
Therefore, and since it is not even questioned by the applicant that
such an action was in fact being taken against him, the Government
submit that this requirement of Article 5 para. 1 was clearly met.
Furthermore, even when considering the question of
enforcement, the Government maintain that there is no ground for
contending that at any time prior to 10 December 1984 the action
against the applicant was not carried out with a view to also having a
possible expulsion order enforced. It should be added that, as
regards the question of enforcement, the decision of 10 December 1984
only meant that the expulsion order should not be executed for the
time being. Consequently, the action taken against the applicant
could not, even when considered in light of the decision of 10
December 1984, be viewed as anything else than an action, taken for
the purpose of reaching, and also ultimately enforcing, a decision of
expulsion.
3.1.4 Summing up
To sum up, the Government conclude under para. 1 of Article 5
that the taking into custody of the applicant was carried out in
accordance with a procedure prescribed by law, that it was lawful and
that it was done in an action taken against him with a view to having
him expelled. Consequently, the Government submit that there has been
no violation of Article 5 para. 1 of the Convention. Given the
apparent lack of merits in the complaint, the Government maintain that
this complaint is manifestly ill-founded.
3.2 Article 5 para. 4
The Government firstly observe that the applicant was taken
into custody on 18 September 1984 and that he did not avail himself of
the opportunity of bringing the matter before the Administrative Court
of Appeal until 2 October 1984. Before considering the matter, it
was necessary for the Court to order the case file from the authority
that had taken the decision appealed against, ie. the National Police
Board. This request for documents also came to include a
tape-recording, particularly referred to by the applicant's legal
representative in a telephone call to the Court on 3 October 1984. The
documents were submitted to the Court on 5 (Friday) and 8 (Monday)
October respectively. In the meantime, on 5 October, the expulsion
matter was brought before the Government by the National Police Board.
Furthermore, on 8 October 1984 the Permanent Under-Secretary of the
Ministry in charge of the matter decided, in accordance with Sections
53 and 57 of the Aliens Act, that a hearing be held before the
Administrative Court of Appeal. Five other hearings were to be held
before the Court in cases of the same character. The Court promptly
decided to hear all five cases on the same day, and scheduled the
hearings for 9 October 1984. Having been informed that the
applicant's legal representative, Mr. Wellton, as well as another
lawyer involved, would not be able to appear before the Court this
day, the Court, having consulted among others Mr. Wellton,
re-scheduled the hearing for 11 October 1984. The Court's judgment
was delivered on 12 October 1984.
In the Government's view, there is nothing to indicate that at
any time during the proceedings the matter was unduly delayed. This is
even more so in view of the fact that the hearing was postponed by two
days due to circumstances partly related to the applicant's own legal
representative.
In view hereof, the Government maintain that this complaint is
also manifestly ill-founded.
4. Conclusion
The Government submit in conclusion, as regards the
admissibility, that the application should be declared inadmissible
for being manifestly ill-founded, and as regards the merits, that
there has been no violation of the Convention.
B. The Applicant
1. The Facts
The applicant points out that, as far as he knows, he
personally was never suspected and was never contacted by the police
or prosecutor in Uppsala in relation to the criminal investigations.
That investigation centred on other persons.
2. Article 5 para. 1
2.1 "a procedure prescribed by law"
The applicant maintains that the hearings, both before the
National Police Board and the District Court, and to some extent that
before the Administrative Court of Appeal, were not carried out in
accordance with the relevant legal provisions. According to Section
60 para. 1 of the Aliens Act, the hearings are supposed to closely
examine and discuss the circumstances relevant to the case, charges
and custody. Only in one aspect has this been followed, namely in that
the security police has asked all the questions it wanted to ask. It
has not been possible for the applicant to ask anything with some
possible minor exceptions.
There has been no one presiding or acting in the interest of
clarifying the questions or even showing interest in doing so. Before
the National Police Board the Chairman was a police head of department
who obviously saw it and must have seen it contrary to his duty to
act according to Section 60 para. 1.
In the District Court the judge presided in name only. Hardly
any questions to the police were answered and no witnesses accepted.
In the Administrative Court of Appeal the situation was the
same but, considering the apparent early state of the investigation,
this may be acceptable for that Court.
Considering whether there has been a breach of the intent of
Section 60, para. 1, as it must reasonably be interpreted, it would
seem that the discrepancy is even more apparent, since one cannot be
expected to defend oneself against what one has no means of finding
out and a legal body cannot be expected to rule fairly in a matter in
which it is not even interested or sees itself supposed to delve into.
The Government's statement seems to give the impression of a
judicial system totally impervious to the fact that Section 60 was
enacted precisely to secure that what happened in this case should not
happen. It is not necessary with a provision like this to conduct a
police inquiry or a hearing.
It could be expected that a modern western legal system is
less machiavellian. The provision that hearings were to be held in a
court was made as a result of widespread criticism against the then
existing Act in the wake of the terrorist cases a few years ago.
Whether it was intended as a real safeguard or a politically motivated
patch-work is still debated. The application of the provision in this
case strongly suggests the latter.
According to the travaux préparatoires these hearings shall
protect the interests of both the police and the alien. The applicant
fails to see in what way his interests have been protected.
Furthermore, nowhere in the Aliens Act is there a provision
for an alien to hear witnesses at a hearing other than Section 59,
which only uses the term "other persons to be heard". Perhaps this is
not supposed to include witnesses.
The provision that the "real" hearing should be held in a
District Court is no less than a Potemkin construction since the Court
in this case is nothing more than the room in which it sits plus a
judge. The judge, however, as he personally admitted on several
occasions, has no function other than just presiding - he knows very
little about the case. He has no function whatsoever in the case.
He is not even empowered to rule on any issue, or to decide
whether a witness or even any other person is to be heard before the
Court. The latter is decided by the responsible Minister. In the
applicant's case the Minister refused to hear two of the applicant's
witnesses (decision of 15 October 1984) giving no reason whatsoever
and there is no possibility of appealing against that decision.
Any ordinary person reading Section 59 gets the impression
that by "other persons to be heard" the Act means witnesses. It would
be most interesting to hear the Government's opinion on this point. It
is not only the wording of an Act which should matter. It is equally
important to look at the Government sanctioned application thereof.
As regards the hearing on 28 September 1984 before the
National Police Board, the persons present according to the minutes
were: Chairman A.K., lawyer T.V.W., interpreter A.O. and clerk L.B.
L.B. was the person who, up to that date, had been responsible for
interrogating the applicant. Upon receipt of the minutes, the
applicant's representative noted in surprise that the person who was
presented as the official counsel was labelled "chairman".
Apparently the National Police Board had followed Section 58,
but for some reasons, later preferred to label the chairman as just
"chairman". The applicant maintains that the "chairman" was presented
at the hearing as an official counsel. Be that as it may, the
criticism against the manner in which this hearing was held, from a
"constitutional" and "Conventional" point of view remains the same.
From July 1982, an official counsel must always be appointed
in a terrorist case pursuant to Section 58. According to the travaux
préparatoires, normally a representative of the National Police Board
shall be chosen. This person shall see to it that the questions at
hand be discussed and considered in a thorough manner. It would seem
that only a faultless Swedish bureaucrat could construct such a
provision, absolutely impossible to comply with logically and
practically.
It should also be noted that an official counsel was appointed
no later than 11 October before the Court of Appeal.
It would be easier for the Commission to evaluate the content
of the questions at the end of the hearing, were the Government to
provide a copy of the minutes of the hearing. The Government give the
impression that the answers to the questions put to the applicant
could lead to his release after the hearing. Such naiveté is not
convincing.
The answers given by the applicant seem rather to require his
release had they mattered at all. As a closing statement to this
effect, the applicant notes that on no occasion where a hearing was
held was any of the accused or suspected persons set free. The
transcripts of the paper on which the decisions by the Police Board of
1 October 1984 were written show a form with a blank space for the
name of each person to be filled in. Furthermore, the transcripts of
the minutes from the hearing on 28 September show that each person was
presented with a standardised set of questions after which each one
was given the opportunity to say some words about his innocence.
Thereafter the chairman most politely declared the hearing closed.
At no time was there an opportunity to ask any questions or
discuss any points. If the applicant tried to do so, he was met with
a blank mute stare or at best a wan smile. How the Government could
still maintain that this was a hearing surpasses the representative's
comprehension. What primarily matters is what happens, not what
should happen according to the law.
The Government state that the applicant's legal representative
was free to comment on the matter at the hearing. The applicant
wonders why the Government uses the verb "comment" rather than
"discuss". Certainly the applicant could comment, but to no avail
since no one present would give any answers or discuss anything or as
someone said at one time "we ask the questions".
Finally, the Government maintain that the applicant's
representative expressed no view on the occasion about the manner in
which the hearing was conducted. However, he did comment some time
after it was closed, but the representative states that he was at a
total loss of words from the surprise and frustration at being present
at a hearing that had every quality of an ordinary police
interrogation. In codifying hearings, it was intended that these
hearings should differ from interrogations. Hearings should be
somewhat equal to legal proceedings before a court.
Normally a decision by a legal body as on 18 September 1984 is
unlikely to be easily reversed or considered in a different way if the
same legal body, although using a legal procedure with another name
but the same appearance, is to review the questions. The Government
miss the real question before the Commission. It is not only whether
the applicant has been given the proper proceedings according to the
law but it is whether the law governing those proceedings was observed
in accordance with the Convention.
2.2 "lawful detention"
The applicant confirms the Government's opinion that it is
sufficient that a decision of expulsion can be ultimately expected.
The text uses the words "probable reasons". However the question
remains whether the taking into custody was legal or even excusable in
September. The following is cited from the book The Aliens Act,
Second Edition, by G. Wikrén, the leading expert within the Government
on this Act.
"If expulsion cannot be executed because a ... residence
permit first has to be revoked by the Immigration Board,
grounds would not exist for taking an alien into custody
before that is done."
It is to be noted that in September 1984 the applicant was not
suspected of intending to commit any crime in the future apart from
being suspected of being a sympathiser or member of a terrorist
organisation. What he was suspected of was having been
instrumental in carrying out the murder of 20 June. This is an
important fact. It is also important to note that if the Government,
acting through the Security Police, thought that there were new
grounds for suspecting or apprehending the applicant, the proper
manner would have been to provide the prosecutor with this material so
that the applicant could have been sentenced and expelled by the
District Court. Instead the Security Police refused to provide the
prosecutor with anything, as a result of which he was forced to close
the investigation. The prosecutor has admitted this himself.
Obviously, the Government felt that the court system could not
be trusted to provide an expulsion order in the applicant's case and
chose another way to secure this end.
A further requirement for taking the applicant into custody in
September was that he could be expected to evade the country or engage
in criminal activities. With respect to evasion, the applicant
obviously had nowhere to go between 20 June and 18 September. Neither
did he, during that time, depart from his normal routines, work,
family etc. or even leave Stockholm. It could possibly be argued
that had he been presented with the charges of 18 September while
still free, he would have left the country with a false passport, but
that would only have made the Government happier. As for the risk of
evasion, there exists a decision of 30 October 1984 (No. 1584/83) by
the Parliamentary Ombudsman (justitieombudsmannen) to the effect that
an alien with a known address and family should not be taken into
custody on the risk of evasion per se.
As regards the Government's remarks with respect to Section 50,
the applicant finds it difficult to see any merits in this submission.
If no expulsion order was to be expected what other part of Section 50
could then be called upon to justify custody?
Reading between the lines, the Government admit the unofficial
secret that, for quite some time before 10 December 1984, the
Government had conducted a frantic search for a country that for some
reason could and would accept the applicant et al. after an expulsion
order. Since no such country could be found, it was a foregone
conclusion that the Government's decision would contain what it did.
The National Board of Immigration had earlier stated that it
would be possible to carry out an expulsion order, but the Board did
not possess the means to conduct diplomatic talks on this question as
did the Government. This is the only difference, since, one could
rather safely assume, not even the Government harboured any real plans
to send the applicant to Turkey.
As to whether a decision could have been made before 10
December, it is correct that that has not been alleged. The reason
is, however, the fact that the applicant considers it self-evident
that it could have been done.
An amazing fact is that legal bodies having passed decisions
on custody in this case have, as it appears, automatically come to the
conclusion that there existed "extraordinary reasons" for custody.
This is amazing since even before the Administrative Court of Appeal
on 11 October 1984 obviously no such reasons were presented to the
applicant. It could be discussed whether they constituted probable
cause but hardly anything else. If nothing else, this clearly shows
that the applicant from the start never was shown the real charges or
the witness material the Police had against him. This has later been
confirmed on television by the responsible Minister.
It is not possible to defend a person when one never sees or
hears what the charges are. The Minister has defended this by saying
later that it was necessary out of consideration for the witnesses and
their families. The applicant can provide the Commission with a video
recording of these statements, if the Commission so wish.
Article 5 para. 4 of the Convention presupposes that the Court
and also the alien in question know what he is charged with so that he
can defend himself against those charges. According to the travaux
préparatoires of the earlier Aliens Act of 1954, it is of special
value at a hearing that the alien is given an opportunity to learn
what the charges are and to defend himself against them. This text
has been deleted in the travaux préparatoires to the amendment of
1982. Whether this is an intentional omission or not, the applicant
does not know.
As regards the criminal activities of the applicant, the
Government's inference is quite misleading. The prosecutor never
arrived at the point at which he had to make this decision. At the
time, he was forced to close the investigation for lack of material
and co-operation. He still apparently wished to continue the
investigation. During interrogation it was made quite clear that the
applicant was suspected of being instrumental to the murder. This was
reiterated by the Security Police on many occasions. Furthermore, the
Government's submissions are misleading in that the prosecutor only
dealt with the murder of 20 June 1984 and not with "certain crimes in
the past". "In view of what was known of the applicant" is also
misleading since nothing of relevance to the matter was "known" other
than whatever information or gossip the police had got through the
witnesses whose existence they refused to reveal.
The applicant concludes that his custody was not in accordance
with the applicable provisions of the Aliens Act.
3. Article 5 para. 4
The delay in scheduling the hearing may have been partly
caused by two lawyers being occupied. However, by being occupied, it
is understood that the Government mean during the afternoon until
about 3 or 4 o'clock. There was nothing stopping the Administrative
Court of Appeal from scheduling the hearing late in the afternoon.
This is not done for reasons of practice.
4. Conclusion
The applicant concludes that there have been several violations
of the Convention whether according to the Swedish Aliens Act or not.
THE LAW
The applicant has made several complaints in relation to the
procedure and decisions taken concerning his custody and expulsion.
1. The applicant has complained that his deprivation of liberty was a
breach of Article 5 para. 1 (Art. 5-1) of the Convention. The only relevant
provision of paragraph 1 in this case is sub-para. (f) (Art. 5-1-f) which
provides:
"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 against
whom action is being taken with a view to deportation or
extradition."
Accordingly, Article 5 para. 1 (f) (Art. 5-1-f) of the Convention
requires that the arrest or detention should be "in accordance with a procedure
prescribed by law", and "lawful", and it must relate to a person "against whom
an action is being taken with a view to deportation or extradition".
The applicant has contested that any of these conditions was
satisfied in his case. The Government have submitted that all of
them were satisfied.
The case-law on the interpretation of the words "in accordance
with a procedure prescribed by law" can be summarised as follows: The
quoted words essentially refer to domestic law. Accordingly the
deprivation of liberty must comply with the procedure prescribed by
the domestic law. The domestic law must also be in conformity with
the Convention; in particular the procedure must be fair and proper.
The decision must emanate from a competent authority and must not be
arbitrary. The review of the Convention organs is subsidiary. It is
in the first place for the domestic authorities, notably the Courts,
to settle any issues under domestic law (see Eur Court H.R.,
Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 19-20,
paras. 45-46).
The Commission notes that on 18 September 1984 the applicant
was taken into custody pursuant to Section 50 of the Aliens Act
following a decision of the National Police Board. On 1 October 1984,
the National Police Board decided that the applicant should remain in
custody. The applicant appealed to the Administrative Court of
Appeal, which on 12 October rejected the appeal.
The applicant's custody was subsequently prolonged every
two weeks by decisions of the responsible Minister of the Government,
namely on 15 and 26 October, 12 and 26 November 1984. The applicant
lodged an appeal against the decision of 12 November with the Supreme
Administrative Court, which on 22 November 1984 upheld the decision of
the Minister.
The applicant has made several submissions which in his
opinion show that his detention was not "in accordance with a
procedure prescribed by law". He has complained about the procedure
before the National Police Board which he maintains was in conflict
with the Aliens Act in different respects. Firstly he maintains that
the procedure was in conflict with Section 57 of the Act since no
hearing was held before the Stockholm District Court before the
National Police Board made its decision on 1 October 1984 that the
applicant's detention should continue. Secondly, the applicant has
submitted that the manner in which the hearing on 28 September was
conducted violated the provisions of Section 60 of the Act. A similar
complaint is made in respect of the hearings before the District Court
and the Administrative Court of Appeal. The applicant has furthermore
contended that it is a violation of the Convention that the same
authority (the National Police Board) has power to decide whether or
not its own decision should be upheld. The applicant has also
complained that he was not allowed to hear witnesses.
The Government have submitted that the applicant has
misconceived the provisions of the Aliens Act. Section 57 para. 2,
which provides for a hearing before the District Court of Stockholm,
was not applicable when the hearing was held before the National
Police Board. It was Section 57 para. 1 which was applicable since
the issue was one of continued detention under Section 53. As regards
the manner in which the hearing was conducted, the Government have
submitted that there is no indication that the hearing was contrary to
the Act. The Government have finally submitted that it is incorrect
to say that the National Police Board, when deciding on the continued
custody on 1 October 1984, was reconsidering its decision of 18
September to take the applicant into custody.
As regards the question of the competent authority to hold the
hearing, the Commission notes that Section 53 of the Aliens Act
requires that, before a decision is taken on continued custody of an
alien for more than two weeks, a hearing must be held. According to
Section 57, first sentence, of the Act, the hearing should take place
before the authority which deals with the case. It is true that under
the second paragraph of Section 57 the hearing should take place
before the Stockholm District Court in matters of refusal of entry
under Section 30 and expulsion under Sections 47 and 48. The
Commission is satisfied, however, that the second paragraph of Section
57 was not applicable until the matter had been referred to the
Government on 5 October 1984. It was thus not applicable to the
hearing prior to the decision on custody of 1 October 1984. In these
circumstances, the Commission finds that it has not been established
that the absence of a hearing before the Stockholm District Court was
a violation of Swedish law. The Commission also notes that
subsequently, when the case was before the Government, hearings were
held before the Stockholm District Court.
As regards the manner in which the hearings were conducted, in
particular before the National Police Board, the applicant has
submitted that Section 60 of the Aliens Act was not adhered to, inter
alia, since the circumstances which could have an influence in the
matter were not "carefully examined".
Section 60 requires that the facts which may have a bearing on
the case shall be carefully examined and that the alien shall be given
the opportunity of stating his views and of commenting on the facts
which are invoked in the case. It is established that the applicant
was present at the hearing and that he was assisted by his legal
counsel. The applicant alleges that no one was interested in his
views. However, he does not complain that he or his counsel was
prevented from putting forward his opinions or comments at the
hearing.
The Commission notes in this context that the continued
custody of the applicant was reviewed by the Administrative Court of
Appeal, which held a hearing of one full day. Any procedural defects
which may have occurred before the National Police Board could have
been brought to the attention of the Administrative Court of Appeal.
The Commission finds no indication that the procedure before the
Administrative Court of Appeal did not satisfy the condition of proper
procedure having regard to the subject matter of the case. The issue
of whether the procedure was sufficiently "speedy" for the purposes of
Article 5 para. 4 (Art. 5-4) of the Convention will be examined below.
In respect of the procedure before the District Court of
Stockholm and the alleged refusal to hear witnesses the applicant has
failed to establish that the domestic law has been infringed.
Finally, as regards the fact that the National Police Board
first decided to take the applicant into custody and then decided to
prolong the custody, the Commission finds with the Government that the
National Police Board did not thereby on 1 October 1984 reconsider its
decision of 18 September. The Commission also observes that in
respect of both these decisions the applicant had available to him,
and also exercised, a right of appeal to the Administrative Court of
Appeal.
To sum up, the Commission considers that the applicant's
continued custody was "in accordance with a procedure prescribed by
law", as required by Article 5, para. 1 (Art. 5-1) of the Convention.
As regards the "lawfulness" of the custody, it is necessary to
establish whether the custody was in conformity with the domestic law,
whether it conformed with the purposes of the restrictions permitted by Article
5 para. 1 (Art. 5-1) of the Convention and finally whether the custody was not
"arbitrary" (see Eur. Court H.R., Ashingdane judgment of 28 May 1985, Series A
no. 93 pp. 21, para. 44).
It appears from the reasons given in the decisions of the
National Police Board, the Administrative Court of Appeal, the
responsible Ministers and the Supreme Administrative Court that the
custody of the applicant was throughout based on the assumption that
there was a probable cause for the applicant's expulsion and on the
fear that he would evade or, as from the judgment of the
Administrative Court of Appeal, also on the fear that he would engage
in criminal activities. Moreover, according to the authorities, there
were extraordinary reasons for continued custody. The Commission is
satisfied that the applicant's detention on these grounds was in
conformity with Section 50 para. 1 and Section 53 para. 1 of the
Aliens Act.
The applicant has in essence complained about two things.
First, he considers it to be remarkable that the criminal
investigations against him were discontinued since no criminal offence
could be proved, and yet subsequently he was taken into custody inter
alia because it was feared that he might engage in criminal activities.
Secondly, the applicant submits that it must have been obvious that he
could not be expelled in view of the situation in his home country and
that therefore there were obstacles to the enforcement of any
expulsion decision.
The Commission finds nothing in the case-file to support the
submission that the custody had any other purpose than those indicated
by the deciding authorities. The Commission recalls in this context
that certain of the decisions have been reviewed by the Administrative
Court of Appeal and the Supreme Administrative Court. The Commission
notes that the grounds for which an alien may be expelled under
Sections 47 and 30 of the Aliens Act do not presuppose the conviction
of any criminal offences. The fact that the criminal investigations
were discontinued did not therefore exclude that the applicant could
be expelled under Section 47. Moreover, as regards the alleged
impossibility of expelling him to his home country, the Commission
notes that the question whether there are obstacles to the enforcement
of an expulsion decision does not arise before a decision on expulsion
has been taken. The question to which country a person should be
expelled also does not arise until the expulsion decision has been
taken (cf. Sections 77, 78 and 81 of the Aliens Act).
The Commission therefore finds that the custody of the
applicant was both "lawful" and "taken with a view to deportation" of
the applicant. Accordingly, the Commission finds no indication of a
breach of Article 5 para. 1 (Art. 5-1) of the Convention.
It follows that the complaint under Article 5 para. 1 (Art. 5-1) is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicant has also invoked Article 5 para. 3 (Art. 5-3) of the
Convention.
Article 5 para. 3 forms a whole with Article 5 para. 1 (c) (Art. 5-1-c)
of the Convention and is only applicable to arrest and detention under Article
5 para. 1 (c) (Art. 5-1-c) . In the present case, the Commission has found
above that the applicant was deprived of his liberty with a view to being
deported, a situation which falls under paragraph 1 (f) (Art. 5-1-f).
There is no question of the applicant's detention having been
ordered "for the purpose of bringing (him) before the competent legal
authority" in the course of criminal proceedings, which is a condition for the
applicability of Article 5 para. 1 (c) (Art. 5-1-c) . Accordingly, Article 5
para. 1 (c) (Art. 5-1-c) and Article 5 para. 3 (Art. 5-3) were not applicable
in the present case.
It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2).
3. The applicant has next complained of a breach of Article 5 para.
4 (Art. 5-4) of the Convention which provides:
"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 applicant has complained about the procedure before the
National Police Board, and that it took eleven days until the
Administrative Court of Appeal determined his appeal.
Article 5 para. 4 (Art. 5-4) of the Convention does not apply to the
proceedings before the National Police Board. It guarantees the right
"to take proceedings" before a "court". The applicant had such a
right since he could appeal to the Administrative Court of Appeal
against the decisions of the National Police Board. There is no
indication that the procedure before that Court did not satisfy the
conditions of Article 5 para. 4 (Art. 5-4) of the Convention. The only issue
which needs closer examination is whether the proceedings met the
requirement of "speedily".
The Commission has previously stated that the question of
whether proceedings under Article 5 para. 4 (Art. 5-4) complied with the
condition of speed "cannot be defined in the abstract but must be
assessed in the light of the circumstances of the particular case"
(see Christenet v. Switzerland, Comm. Report 1.3.79, para. 41). This
case-law has been confirmed by the European Court of Human Rights
(Eur. Court H.R., Sanchez-Reisse judgment of 21 October 1986, Series A
no 107, p. 20, para. 55).
The Commission has also stated that "it must take account of
the general conduct of the proceedings and the extent to which delays
can be attributed to the behaviour of the applicant or his legal
representative" and that "the State must organise its procedures in
such a way that the proceedings can be conducted with the minimum of
delay" (see Zamir v. the United Kingdom, Comm Report 11.10.83,
para. 108).
In the case of Christenet v. Switzerland (see above) the
Commission found that a delay of 10, or 16 days, was compatible with
the word "speedily". In another case (Sanchez-Reisse judgment, p. 22,
para. 61) the Court found a delay of 31 days to be excessive.
In the present case, the applicant seized the Administrative
Court of Appeal on 2 October 1984 with an appeal against the decisions
of the National Police Board of 18 September and 1 October 1984. The
Court delivered judgment on 12 October after having held a hearing on
11 October. The delay to be examined is thus 10 days. The
Commission, having regard to the explanations given by the Government
and the subject-matter, finds that such a delay cannot be regarded as
having exceeded the period permissible under Article 5 para. 4 (Art. 5-4) of the
Convention.
It follows that this aspect of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant has also claimed compensation under Article 5
para. 5 (Art. 5-5) of the Convention.
It is clear from the wording of Article 5 para. 5 (Art. 5-5) that the
application of that provision presupposes the establishment of a
breach of one of the preceding paragraphs of Article 5 (Art. 5). As no such
breach has been found the complaint under Article 5 para. 5 (Art. 5-5) is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2).
5. The applicant has also complained of breaches of Article 6
paras. 2 and 3 (d) (Art. 6-2, 6-3-d) of the Convention.
However, these provisions are only applicable where someone
has been "charged with a criminal offence". The applicant has not
been charged with any criminal offence in the present case.
Accordingly, Article 6 paras. 2 and 3 (Art. 6-2-3) are not applicable.
This part of the application is therefore incompatible
ratione materiæ with the provisions of the Convention within the
meaning of Article 27 para 2 (Art. 27-2).
6. Finally the applicant has alleged a violation of Article 14 (Art. 14)
of the Convention, which prohibits discrimination in the enjoyment of the
rights and freedoms guaranteed by the Convention.
The Commission finds no appearance of a violation of
Article 14 of the Convention.
It follows that this aspect of the application is manifestly
ill-founded within the meaning of Article 27 para 2 (Art. 27-2).
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)