Lexploria

The European Commission of Human Rights sitting in private on 3 March

1986 the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

G. BATLINER

Mrs. G. H. THUNE

Sir Basil HALL

Mr. H. C. KRÜGER Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 25 March 1985 by

M.M. against the United Kingdom and registered on

26 April 1985 under file N° 11517/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1951 in

London. He is a self-employed leather worker, at present residing in

Dublin, Ireland. He is represented in proceedings before the

Commission by Mr. Alistair Logan, solicitor, Guildford, Surrey.

On 12 May 1975 the applicant was sentenced to 12 years' imprisonment

at Birmingham Crown Court for an offence of conspiracy to cause

explosions. He was released from prison on 28 September 1984. Prior

to his release he had been interviewed by officers of the Special

Branch with a view to determining whether or not a recommendation

should be made to the Secretary of State for Home Affairs that he

should be excluded from the United Kingdom under the provisions of the

Prevention of Terrorism (Temporary Provisions) Act 1984. The

applicant indicated that he had no longer any interest in politics and

wanted to lead a normal life after his imprisonment. He stated that

he had no intention in engaging in acts of terrorism on his release.

The applicant was excluded from Great Britain pursuant to Section 4(1)

and (2) of the 1984 Act by an Order of the Secretary of State for Home

Affairs which was served on him on 26 September 1984. The order stated

that the Secretary of State of the Home Office was satisfied that the

applicant "is or has been concerned in the commission, preparation or

instigation of acts of terrorism designed to influence public opinion

or Government policy with respect to affairs in Northern Ireland." On

his release he was escorted from Great Britain on a plane bound for

Dublin.

The applicant states that he spent the early part of his life in the

United Kingdom until his father elected to return to Ireland. Both his

parents were born in Ireland and are therefore Irish citizens. The

applicant has not elected to become an Irish citizen, nor has he

renounced the citizenship of the United Kingdom. The applicant has

not been excluded from Northern Ireland but he states that he has no

wish to go to Northern Ireland since he has no connection with it.

COMPLAINTS AND SUBMISSIONS

Article 6 (Art. 6)

The applicant has not been told the nature of the charges against him

which motivate the Exclusion Order. The only reasons he has been

given are cited in the Exclusion Order that he "is or has been

concerned in the commission, preparation or instigation of acts of

terrorism designed to influence public opinion or Government policy

with respect to affairs in Northern Ireland". He contends that an

allegation has been levelled against him of conduct of a criminal

nature which is tantamount to a criminal charge within the meaning of

Art. 6, para. 1 (Art. 6-1). He complains that the procedure under the

1984 Act does not provide for an independent and impartial tribunal to

consider the charges against him.

In addition, he has been deprived of the rights attached to his United

Kingdom citizenship by arbitrary order without appeal and in breach of

Art. 6, para. 1 (Art. 6-1).

He further complains that the procedure is in violation of the

presumption of innocence under Art. 6, para. 2 (Art. 6-2). There is an

assumption that he is guilty of some criminal act. The facts are not

made available to him to enable him to contest them and the burden

lies with him to prove his innocence, contrary to the requirements of

this provision.

He also complains

- that he has not been informed promptly in a language which he

understands and in detail the nature and cause of the accusation

against him contrary to Art. 6, para. 3, sub-para. a (Art. 6-3-a). In

the absence of any detailed reasons for the suspicions against him

makes it impossible for him to defend himself.

- that he has been denied adequate time and facilities in order

to prepare his defence contrary to Art. 6, para. 3, sub-para. b

(Art. 6-3-b). He did not avail of the appeal procedure provided under

the 1984 Act since he would have been detained for a further two

months until the appeal procedure had terminated.

- that he did not have access to examine or have examined those

witnesses whose evidence motivated the Secretary of State to make an

exclusion order, contrary to Art. 6, para. 3, sub-para. d (Art. 6-3-d).

Article 7 (Art. 7)

The applicant points out that he has already served the penalty that

was imposed on him for the commission of the offence of conspirary to

cause explosions. If the decision to exclude the applicant was based

on this original conviction then it constitutes a further punishment

which is imposed retrospectively in breach of this provision.

Article 8 (Art. 8)

The applicant further complains that the decision to exclude him from

Great Britain is an interference with his rights under Art. 8 (Art. 8)

in that his citizenship entitled him to exercise the rights of his

citizenship within the country of his birth. These rights have now

been taken from him in an arbitrary manner without affording him the

opportunity of defending himself. He claims that he has been expelled

to a foreign country, albeit one with which he has had a substantial

connection. He is not a citizen of that country. He accepts that he

is not excluded from residing in Northern Ireland but states that he

has no real or substantial connection with that country and does not

wish to live there. Finally, he points out that his exclusion from

Great Britain prevents him from visiting elderly members of his family

who reside there and who supported him during his period of

imprisonment.

Article 9 (Art. 9)

The applicant complains of a breach of this provision if he has been

excluded for any reasons relating to his beliefs.

Article 13 (Art. 13)

The applicant claims that the appeal procedure provided for in the

1984 Act does not constitute an effective remedy since it is not an

independent and impartial body and since he has not been informed of

the reasons underlying his exclusion.

Exhaustion of domestic remedies

The applicant submits that the appeal procedure provided for under the

1984 Act is not an effective remedy since he has no right to know the

nature of the case against him. Moreover the appeal procedure is not

an impartial procedure as the Government officials involved are aware

of the details of the case against him. Finally, he points out that

in order to succeed in an action for judicial review of the exclusion

order, he would have to show mala fides on the part of the Secretary

of State. Since he has not been informed of the nature of the

accusations againt him it would not be possible to make out a case of

mala fides.

THE LAW

1. The applicant complains of his exclusion from the United

Kingdom by order of the Secretary of State pursuant to Section 4(1)

and (2) of the Prevention of Terrorism (Temporary Provisions) Act

1984. He invokes Arts. 6, para. 1 (Art. 6-1), and Arts. 7, 8, 9 and

13 of the Convention (Art. 7, art. 8, art. 9, art. 13).

2. The Commission recalls, first of all, that the exclusion of a

person from one part of a country would normally fall to be examined

under Art. 2, para. 1 of Protocol No. 4 (P4-2-1) which guarantees that

"Everyone lawfully within the territory of a State shall, within that

territory, have the right of liberty of movement and freedom to choose

his residence." In the present case, however, no such issue can arise

since the United Kingdom have not ratified this Protocol.

As regards Article 6, para. 1 (Art. 6-1)

3. The applicant submits that his exclusion involves the

determination of a criminal charge within the meaning of Art. 6,

para. 1 (Art. 6-1).

4. This provision provides inter alia that:

"In the determination ... of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law ..."

5. The Commission does not, however, consider that this provision

is applicable in the present case. It considers that the applicant's

exclusion from Great Britain is to be seen as a security measure

because of his suspected involvement in the "commission, preparation

or instigation of acts of terrorism" and not as a criminal penalty.

It refers, in this respect, mutatis mutandis, to the decision of

the European Court of Human Rights in the Guzzardi case (judgment

of 6.11.80, para. 108; see also Dec. No. 7729/76, 17.12.76, D.R. 7

p. 176).

As regards Article 7 (Art. 7)

6. The applicant complains that the exclusion order could be seen

to constitute an additional penalty retroactively imposed in breach of

Art. 7, para. 1 of the Convention (Art. 7-1). This provision states:

"1. No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal offence

under national or international law at the time when it was committed.

Nor shall a heavier penalty be imposed than the one that was

applicable at the time the criminal offence was committed."

7. The Commission recalls its opinion that the applicant's

exclusion must be seen as a security measure and not as a penalty. It

accepts that his exclusion may have far-reaching effects on his

situation. However, if the nature and purpose of the measure is not

that of a penalty, this is not in itself sufficient to bring it within

the scope of Art. 7 (Art. 7). Accordingly, there is no indication of

a breach of this provision.

As regards Article 8 (Art. 8)

8. The applicant complains firstly that his rights of citizenship

have been taken away from him arbitrarily in that he is prevented from

living in Great Britain. He further complains that his exclusion

constitutes an unjustified interference with his right to respect for

family life since he is unable to visit elderly members of his family

who reside there.

9. Art. 8, para. 1 (Art. 8-1) provides as follows:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence."

10. As regards the applicant's first complaint under this head, the

Commission considers that this provision does not confer a right to

reside in any particular part of a Convention territory. Nevertheless

removal to one part of the country may raise an issue concerning

respect for family life under this provision.

11. However, in the present case, the applicant has been excluded

from Great Britain and prefers to live in Ireland where, it appears,

his father also resides. Although he alleges that he is prevented

from seeing certain elderly members of his family who supported him

during his imprisonment, he has not indicated the extent of family

links with these relatives or provided any other substantiation of his

complaint in this regard.

12. In these circumstances the Commission does not consider that

the applicant has shown there to be an interference with his right to

respect for family life under this provision.

As regards Article 9 (Art. 9)

13. The applicant further contends that his exclusion may

constitute an interference with his freedom of belief contrary to

para. 1 of this provision (Art. 9-1) which protects inter alia

"freedom of thought, conscience and religion."

14. It is clear, however, that the applicant has been excluded

from Great Britain because of his involvement with a terrorist

organisation, albeit that the precise facts or information on which

the order is based are not known. The Commission does not consider

that in these circumstances there can be said to be an interference

with his rights under this provision.

As regards Art. 13 (Art. 13)

15. The applicant further complains that he is denied an effective

remedy as regards the above complaints. This provision, however, does

not guarantee a remedy in respect of complaints directed against

legislative provisions as in this case (see case of James &

Others, Eur. Ct. H.R., Judgment of 21.2.86, para. 85; see also

Young, James & Webster v. United Kingdom, Comm. Rep. 14.12.79,

para. 177).

16. The Commission therefore concludes that the application must

be rejected as manifestly ill-founded as a whole within the meaning of

Art. 27, para. 2 of the Convention (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)

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M. v. THE UNITED KINGDOM

M. v. THE UNITED KINGDOM