SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50315/99 by R.G. against Greece

The European Court of Human Rights (Second Section), sitting on 22 May 2001 as a Chamber composed of

Mr G. Bonello , President , Mr C.L. Rozakis , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr A. Kovler , judges ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced on 12 August 1999 and registered on the same day,

Having regard to the partial decision of 16 March 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 is a citizen of Sri Lanka of Tamil ethnic origin, born in 1976. He currently resides in Greece. He is represented before the Court by Mrs A. Sykiotou-Androulaki , a lawyer working for the Greek Council for Refugees.

A. The circumstances of the case

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

The applicant’s father was killed by the Indian Peace Keeping Forces (IPKF) in 1987. His elder brother, who was with the Eelam People Revolutionary Liberation Front (EPRLF), has disappeared since 1987. The applicant’s sister arrived in the United Kingdom in 1995 and claimed asylum. On 7 December 1998 the Special Adjudicator concluded that she had a well-founded fear of persecution and allowed her appeal. Reference was made in this decision to the applicant’s own activity.

The applicant states that he was a member of the Liberation Tigers of Tamil Eelam (LTTE) from 1993 to 1997. In 1997 he expressed the wish to withdraw from the group, but its leaders prevented him from doing so and he was forced to stay. In February 1998 he tried to escape from the group’s camp in Glinotsi , but he was arrested and held at the camp as a prisoner. In May 1998 he managed to escape and fled to Colombo. There he was arrested by the police because he had no identity card. While in detention his co-detainees recognised him as being a member of the LTTE. Following that, he claims that he was tortured by police officers. He was detained for three days (from 21 to 24 May 1998). Then he managed to escape with the help of his uncle who bribed some police officers. He was told he had to leave the country immediately because his life was in danger.

The applicant arrived in Greece on 12 December 1998 and was arrested when trying to escape to Italy holding a false passport. On the same day, administrative decision N° 3/753554–15250 ordered the applicant’s expulsion from Greece and his detention pending expulsion.

On 18 February 1999 the applicant sought asylum. He identified himself under a false name because he feared for his safety if he had to return to Sri Lanka.

On 21 April 1999 the Minister of Public Order rejected the applicant’s request. On the same day the applicant appealed against this refusal. During the hearing before the competent administrative committee the applicant was assisted by an interpreter of Tamil ethnic origin.

On 20 May 1999 the Minister of Public Order concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and refused his application. This decision was served on the applicant on 27 May 1999.

On 1 June 1999 the applicant appealed against the decision of 12 December 1998 ordering his expulsion. During the hearing before the competent administrative committee the applicant was assisted by an interpreter of Tamil ethnic origin. His appeal was rejected on 18 June 1999. The applicant claims that he was informed of this decision orally on 21 June 1999.

In the meantime the applicant was informed about his sister’s whereabouts. When he learned that his sister’s request for asylum in the United Kingdom had been upheld, he made a new application for asylum on 8 July 1999.

His request was rejected on 5 August 1999. This decision was served on the applicant on 6 August 1999. On 12 August 1999 he lodged an appeal against this decision with the Council of State. He also applied for a suspensive effect of his appeal.

On 23 August 1999 the Council of State ordered the temporary stay of execution of the administrative acts relating to the applicant’s expulsion.

On 31 August 1999 this decision was served on the applicant, who was then released and given a certificate stating that he remains in the country under tolerance.

B. Relevant domestic law and practice

1 . Section 27 § 6 of Law No. 1975/1991 provides that the Minister of Public Order may, in the public interest and if the person to be expelled is dangerous or there is a risk of him absconding, order his detention until his deportation from Greece becomes feasible.

2 . The application for annulment is the main remedy before the Council of State. This remedy is modelled on the French recours pour excès de pouvoir , and may be used to challenge both administrative action and inaction. The application for annulment may assert lack of competence, infringement of an essential procedural requirement, substantive violation of the law or abuse of discretionary power. A judgment for the petitioner declares the contested decision to be null and void erga omnes . The authorities are obliged to take the measures called for by the judgment, or to refrain from any action declared to be unlawful.

COMPLAINTS

The applicant complains under Article 5 of the Convention that he had been illegally detained by administrative authorities without any prior conviction by a competent court. He further complains, under paragraphs 4 and 5 of the same provision that he did not have any remedies for challenging the lawfulness of his lengthy detention and, lastly, that he did not have a possibility to obtain compensation for his unlawful and unjustified detention.

THE LAW

1. The applicant complains that he had been illegally detained by administrative authorities without any prior conviction by a competent court. He invokes Article 5 of the Convention which, insofar as relevant, reads 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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Court notes that the applicant has been detained under Article 5 § 1 f) of the Convention as a “person against whom action is being taken with a view to deportation”. The Court has examined whether the applicant’s detention was “lawful” for the purposes of Article 5 § 1 (f), with particular reference to the safeguards provided for by the national system. Where the “lawfulness” of detention is in issue, including whether “a procedure prescribed by law” has been followed, the Convention refers essentially to the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgements and Decisions , 1996 ‑ V, p. 1864, § 118).

In the present case, the Court finds that the applicant had been detained in accordance with the procedure prescribed by the domestic law, namely Section 27 § 6 of Law No. 1975/1991, which applies to the expulsion of aliens by administrative order and provides for the detention of an alien pending his expulsion. There is no indication that the applicant’s detention was ordered arbitrarily.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains, invoking paragraph 4 of Article 5, that he did not have any remedies for challenging the lawfulness of his lengthy detention.

The Government affirm that the applicant had at no stage raised before the domestic authorities any complaints regarding the lawfulness of his detention. They stress that the decision to detain the applicant was an administrative act and as such it could have been challenged before the Council of State.

The applicant replies that he found himself in a legal vacuum in which he had no remedy for challenging the lawfulness of his detention. He stresses that the Council of State has no relevant case-law, which in his view proves the absence of legal remedies.

The Court recalls that, in order to be deemed effective, a remedy must be capable of remedying directly the situation complained of. In the present case, it notes that the applicant appealed against the administrative decision ordering his expulsion to the Council of State, which reviewed the question of his expulsion and, by implicit extension, that of his detention. Moreover, it has not been established that the applicant could not also appeal separately against his detention order. In fact, the Court notes that the applicant was detained pursuant to an administrative decision, which, as such, could be challenged before the Council of State by means of an application for annulment. This is the main remedy before the Council of State and it may assert lack of competence, infringement of an essential procedural requirement, substantive violation of the law or abuse of discretionary power. If one of these grounds is substantiated, the application is well founded and the contested decision is declared to be null and void erga omnes (see above “Relevant domestic law and practice”).

In view of the above, the Court is of the opinion that the applicant had available a remedy satisfying the requirements of Article 5 § 4 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant lastly complains under Article 5 § 5 of the Convention that he did not have a possibility to receive compensation for his unlawful detention.

The Court observes that Article 5 § 5 guarantees an enforceable right to compensation only to those who have been victims of arrest or detention in contravention of the provisions of Article 5 (see the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 755, § 50).

In view of its finding that there was no violation of Article 5 in this case, the Court concludes that Article 5 § 5 is not applicable.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the remainder of the application.

Erik Fribergh Giovanni Bonello Registrar President