THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36670/97 by German DUYONOV, Alexy MIRZA, Vadim SPRYGIN, Nikolai IVANOV against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 7 November 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 May 1997 and registered on 23 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the respondent Government’s letter of 9 June 1998,

Having deliberated, decides as follows:

THE FACTS

The applicants are Georgian national s , born in 1968, 1961, 1968 and 1972  respectively, and were at the date of the introduction of the application living in Gibraltar. They are represented before the Court by Messrs S.R. Bossino and C.A. Gomez, lawyers practising in Gibraltar.

A. The circumstances of the case [Note1]

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

On 17 November 1995 the applicants were put ashore in Gibraltar, having been led to believe that they were arriving in Canada. They were fleeing from their native country, Georgia, and had paid for a passage to Canada, where they intended to seek political asylum. The applicants immediately surrendered themselves to the immigration authorities. The Governor of Gibraltar issued an order pursuant to Section 59 (1) of the Immigration Control Ordinance ("the Ordinance") for their removal from Gibraltar and for their detention pending such removal.  Section 59 (1) of the Ordinance provides as follows:

"Any person found in Gibraltar or attempting to enter Gibraltar contrary to the provisions of this Ordinance and any person unlawfully within Gibraltar (hereinafter in this section called 'an unauthorised person') may, in addition to any fine or imprisonment authorised hereunder, be removed from Gibraltar by order of the Governor or of the magistrates' court and may be detained in such manner as may be directed by the Governor or such court until so removed."

The order was renewed from time to time, with release allowed for specific periods from 20 April 1996. On 20 August 1996 the applicants applied for a writ of habeas corpus on the ground that Section 59 (1) of the Ordinance did not authorise their detention. On 3 September 1996 Pizzarello J determined that the order was unlawful on the ground that the power to detain was conditional on the existence of a "fine or imprisonment".  In the absence of either, there was no power to detain.

On 4 October 1996 the Court of Appeal reversed this decision.  It noted that Section 52 (1) of the Ordinance gives the Principal Immigration Officer power to declare to be a prohibited immigrant any person whose presence in Gibraltar is unlawful, and Section 53 (3) gave the Principal Immigration Officer power to detain for 48 hours any prohibited immigrant found in Gibraltar. Further, Section 53 (4) provides that any prohibited immigrant may be dealt with in the same manner as an unauthorised person under Section 59. Reading Sections 52, 53 and 59 (1) together, the Court of Appeal was of the opinion that it could not have been the intention of Section 59 (1) that before the Governor could act he had to await the conviction of the prohibited immigrant in the Magistrates’ Court. The court accepted that this interpretation was unfortunate in some respects, but considered that illegal immigration was a matter of vital importance to the welfare of the community as a whole, and urgent action may require detention for more than the 48 hours referred to in Section 53 (3) of the Ordinance. The Court of Appeal found that the applicants' detention was within the powers granted by Section 59 (1), and allowed the appeal, although by the date of the hearing the order had in fact lapsed.

The applicants applied to the Chief Justice for leave to appeal, and to the Registrar of the Court of Appeal for legal aid. On 24 October 1996 the Registrar granted legal aid for preparation of the Appeal Record for transmission to the Privy Council, but refused legal aid for the proceedings on the ground that legal aid was not available for appeals to the Privy Council. The applicants appealed that refusal to the Chief Justice. On 29 October 1996, provisional leave to appeal to the Privy Council was granted, conditional on obtaining legal aid or if financial security could be obtained.

On 30 January 1997 the Chief Justice found that, as proceedings before the Privy Council were not included in Part II of the Schedule to the Legal Aid and Assistance Ordinance, legal aid could not be granted for such proceedings. He noted that the procedures before the Privy Council are complicated and do not readily lend themselves to presentation by a litigant who is not legally aided and added, "Furthermore, in this appeal there are matters of law, as indeed there are in most appeals which reach the Privy Council, which it will be difficult for a layman to present.  Following the Airey case I find that in denying the applicants access to legal assistance to present these appeals, the Gibraltar legislation does not conform to the obligations imposed by the Convention". The Chief Justice found that Article 6 § 1 of the Convention goes further than Section 8 (8) of the Constitution, in that Article 6 relates to access to court, whilst Section 8 of the Constitution simply provides that any court or other authority set up to determine legal rights must do so fairly and within a reasonable time.

The appeal to the Privy Council did not, in the event proceed. The applicants were subsequently issued with monthly renewable permits of residence and the order of detention and deportation was revoked by the then Governor of Gibraltar. The applicants continued to be denied access to work, medical and other welfare facilities. The applicants state that the Catholic church has provided them with food and shelter and that they wish to remain and work in Gibraltar, fearing persecution if they return to their former homes.

B. Relevant domestic law and practice

Section 12 of the Gibraltar Legal Aid and Assistance Ordinance defines the scope and condition of legal assistance in civil proceedings.  Sub-section (2) of section 12 reads:

“The proceedings in connection with which legal assistance may be given are any proceedings of a description mentioned in Part I of the Schedule except proceedings mentioned in Part II of the Schedule.”

Part II of the Schedule has no relevance to the current application.  Part I of the Schedule reads:

“DESCRIPTION OF PROCEEDINGS

1. Proceedings in any of the following courts –

(a) Supreme Court;

(b) Court of First Instance;

(c) Magistrates’ court in its civil jurisdiction in domestic proceedings;

(d) Court of Appeal.

2. Proceedings before any person to whom a case is referred in whole or in part by any of the said courts.”

COMPLAINTS

The applicants complain about the absence of legal aid for proceedings before the Privy Council. They refer to Articles 6  and 13 of the Convention.

THE LAW

The applicants complain about the absence of legal aid for proceedings before the Privy Council. The applicants invoke Articles 6 and 13 of the Convention. The European Commission of Human Rights when communicating the case to the respondent Government, in its questions, referred to Article 5 § 4 of the Convention which reads as follows:

“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 Government have indicated that they are content not to contest admissibility and accordingly have not  submitted observations at this stage.

Having examined the applicant’s complaints under the Convention, the Court finds that they raise serious questions of fact and law, including the issue whether the absence of legal aid for an appeal to the Privy Council was compatible with the procedural requirements of Article 5 § 4 of the Convention, which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar   President

[Note1] Where the parties’ description of the facts differ their respective versions of the facts should be set out separately.