THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59619/00 by Pedro KAMBANGU against Lithuania

The European Court of Human Rights (Third Section), sitting on 17 June 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr R. Türmen , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 28 April 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Pedro Katunda Kambangu, is an Angolan national who was born in 1968. At present he lives in Moscow, Russia. He is represented before the Court by Mr M. Urbelis, a lawyer practising in Vilnius.

The respondent Government were represented by Mr G. Å vedas, of the Ministry of Justice.

A. The circumstances of the case

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

The applicant arrived in Lithuania on 2 March 1998 with a transit visa valid until 4 March 1998. On the above date the immigration police ordered the applicant to leave Lithuania by 9 March 1998.

According to the applicant’s account, on 10 March 1998 the applicant was arrested while trying to cross the Lithuanian-Belarus border without a passport. He alleged that his passport had been stolen, and that he had intended to go to the Embassy of Angola in Moscow to obtain a new passport. The applicant was arrested for violating the Lithuanian immigration rules requiring having a valid passport for foreign travel. From 10 to 12 March 1998 he was held in police custody in Vilnius.

According to the Government, the applicant was not arrested or detained from 10 to 12 March 1998, but only held by the competent authorities as a result of his failure to carry any valid documents while travelling. 

According to the applicant, on 12 March 1998 he was moved from Vilnius to the PabradÄ— Aliens Registration Centre (“ARC”) on the ground that he was staying in Lithuania illegally.   

The Government state however that on 12 March 1998 the applicant arrived to the ARC and requested residence there of his own free will.

On 22 June 1998 the applicant submitted an application for asylum in Lithuania.

By decision of 12 August 1998 the Migration Department of the Ministry of Interior (“MDMI”) issued the applicant with a temporary permit to stay in Lithuania pending the determination of his asylum request. The above decision authorised his stay at the ARC. The parties have submitted no copy of the decision.

On 6 October 1998 the MDMI refused the applicant’s asylum application. On 19 October 1998 an expulsion order was issued against him. The applicant appealed against these decisions.

On 27 November 1998 the Vilnius Regional Court upheld the appeal, finding that the immigration authorities’ refusal to grant asylum had been unlawful in that they had failed to properly investigate the applicant’s arguments about the risks that he allegedly faced in Angola.

On 17 December 1998 the MDMI revoked the expulsion order.

On 14 June 1999 the MDMI again refused the applicant’s asylum request. The applicant appealed against the decision.

At the same time, the applicant challenged his continued detention at the ARC, claiming that it amounted to unlawful detention. On 11 October 1999 the Higher Administrative Court rejected the applicant’s complaint, finding that the ARC was not a place of deprivation of liberty, but that the applicant was being held there in accordance with the governmental regulations of 17 April 1997.

The applicant’s appeal against the decision of 11 October 1999 was rejected by the Court of Appeal on 7 December 1999 on the ground that there had been no deprivation of liberty of the applicant at the ARC within the meaning of the domestic law or the European Convention on Human Rights. In this respect the court held inter alia :

  “ ... Pedro Katunda Kambangu was accommodated at the Aliens registration centre on 12 March 1998.

The regulations of 17 April 1997 were effective at the time of the placement ( patalpinimo metu ). Points 2, 7 (2), 7 (4) of the regulations provide that the Centre shall accommodate temporarily aliens requesting asylum in the Republic of Lithuania, and aliens who have arrived and are staying in the Republic of Lithuania illegally, until their legal situation is determined in accordance with the [law] ... . Aliens shall be accommodated at the Centre until the temporary asylum is granted ... or [until] they are deported from or leave the Republic of Lithuania (points 10 (1) and 10 (2) of the regulations). There is no basis to claim that [the applicant] was deprived of his liberty ( atimta laisv Ä— ).         

... .

[Article 5 § 4 of the Convention] was not breached as the applicant was not arrested or detained.

As Pedro Katunda Kambangu was neither arrested by way of administrative arrest nor subjected to any other deprivation of liberty, there is no basis to claim that there had been a breach of Article 5 §§ 1 and 4 of the Convention.”

On 9 December 1999 the Higher Administrative Court found that the MDMI had failed to properly investigate the asylum request, quashing the decision to refuse the asylum.

Having obtained a new passport from the Embassy of Angola in Moscow, the applicant left the ARC on 21 January 2000. It appears that he brought no further proceedings regarding the legality of his stay in Lithuania, and voluntarily left the country on 21 January 2000.

On 13 January 2000 the United Nations Working Group on Arbitrary Detention rejected the applicant’s complaint about his placement at the ARC. According to the applicant, his complaints to the above international authority had no relation to his application under the European Convention on Human Rights.    

B. Relevant domestic law and practice

Article 4 of the Governmental Decree on the status of asylum seekers of 3 April 1996 provides that an alien who has arrived in Lithuania illegally and who has applied for asylum “can be sent” ( gali b ū ti nusiųstas ) to the Aliens Registration Centre by decision of the immigration authorities, “in order to establish whether there are circumstances preventing the alien from enjoying asylum in the Republic of Lithuania.” The stay of the alien at the ARC does not as such grant the alien a temporary asylum or a legal status.

The governmental regulations on the Aliens Registration Centre were adopted on 17 April 1997 (see above for the relevant provisions of the regulations quoted in the decision of the Court of Appeal of 7 December 1999). 

Point 2 (6) of the instruction of the Interior Minister on asylum seekers of 9 July 1997 provides that the police can arrest and accommodate at the police station an alien who has no documents justifying his stay in the country. The alien can be kept at the police station until a decision on his legal status is taken, but not for more than 10 days. If the police have no facilities to accommodate the alien for 10, the alien shall be transferred to the Aliens Registration Centre.

Point 2 (10) of the instruction provides than an asylum seeker staying legally on the territory of the country shall inform the immigration authorities of his place of residence in Lithuania. 

COMPLAINTS

1. The applicant complained under Article 5 § 1 of the Convention that his arrest on 10 March 1998 and subsequent custody until 12 March 1998 were unlawful.

2. He further complained that from 12 March 1998 he was unlawfully transferred and held at the ARC until 21 January 2000 because there was no domestic legal basis authorising that deprivation of liberty.

3. The applicant further complains under Articles 5 § 4 and 13 of the Convention that he obtained no court review of his deprivation of liberty.

THE LAW

1. Under Article 5 of the Convention the applicant complained about his alleged arrest and detention in police custody from 10 to 12 March 1998. He also alleged that he had no adequate domestic remedy in this respect. Article 5 of the Convention provides, insofar as relevant, as follows:

“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. ... .

“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 Court recalls that, in respect of a complaint about the absence of a remedy for a continuing situation, such as a period of detention, the six-month time-limit under Article 35 § 1 starts running from the end of that situation – for example, when an applicant is released from custody (see, Jėčius v. Lithuania, no. 34578/97, 31.7.2000, ECHR 2000-IX, § 44).

The applicant has alleged the absence of an adequate remedy in respect of the period of the police custody from 10 to 12 March 1998. However, the impugned situation ended on 12 March 1998 , whereas the application was submitted to the Court only on 28 April 2000, that is more than six months after the events at issue. In accordance with Article 35 §§ 1 and 4 of the Convention, the Court is not empowered to entertain this part of the application as it was submitted out of time.

2. The applicant further complained that from 12 March 1998 until 21 January 2000 he had been unlawfully transferred and held at the ARC, in breach of Article 5 § 1 of the Convention, and that he had no court review available of that deprivation of liberty, in breach of Article 5 § 4 of the Convention.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints, and that it is therefore necessary to put additional questions to the parties in this respect.

3. To the extent that the applicant also complained under Article 13 of the Convention, which guarantees the right to an effective remedy, about being refused access to proper judicial review of his stay at the ARC, the Court notes that it will examine the same complaint under Article 5 § 4 of the Convention, which is a lex specialis in regard to Article 13 of the Convention in this respect. There is thus no need to examine this complaint under Article 13, and this part of the application should be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Article 5 §§ 1 and 4 of the Convention about his stay at the Aliens Registration Centre from 12 March 1998 to 21 January 2000 ;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President