SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50315/99 by Gunasingham SRIKOUMAR [ Rajendran GUNARATNAM] against Greece

The European Court of Human Rights ( Second Section ), sitting on 16 March 2000 as a Chamber composed of

Mr M. Fischbach, President , Mr C.L. Rozakis, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mr A.B. Baka, Mr E. Levits, judges , and Mr E. Fribergh , Section Registrar ,

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

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government on 15 November 1999 and the observations in reply submitted by the applicant on 17 January 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, whose real name is Rajendran Gunaratnam , was born in 1976 in Jaffna. He currently resides in Greece. The applicant is represented before the Court by Mrs Athanassia Sykiotou-Androulaki , a lawyer working for the Greek Council for Refugees.

The applicant is a citizen of Sri Lanka, of Tamil ethnic origin. His 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 immediately 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. A decision dated 12 December 1998 ordering his expulsion was served on the applicant on 21 December 1998.

On 18 February 1999 the applicant sought asylum. He identified himself under a false name ( Gunasingham Srikumar ) 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 st 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. The proceedings concerning the annulment of the decision ordering his expulsion are still pending.

COMPLAINTS

1. The applicant alleges that, in the event of his being deported to Sri Lanka, he would face a real risk of persecution, imprisonment and death. He relies on Article 3 of the Convention.

2. The applicant further complains that he has being illegally detained by administrative authorities without any prior conviction by a competent court. He invokes Article 5 of the Convention.

3. In his reply of 17 January 2000 to the Government’s observations the applicant invoked Article 5 § 4 of the Convention, complaining that he did not have any remedies for challenging the lawfulness of his lengthy detention.

4. In his reply of 17 January 2000 to the Government’s observations the applicant invoked Article 5 § 5 of the Convention, complaining that he did not have a possibility to obtain compensation for his unlawful and unjustified detention.

5. The applicant also complains that he did not receive a fair hearing before the administrative authorities which examined his various requests. In particular he complains that the decisions rejecting his applications for asylum were never served on him. He also complains that he was rarely assisted by an interpreter. He invokes Article 6 of the Convention.

PROCEDURE

The application was introduced on 12 August 1999 and registered on the same day.

On 18 August 1999, the Acting President of the Second Section decided to indicate to the Government, pursuant to Rule 39 of the Court’s Rules of Procedure, that it was desirable in the interests of the parties and the proper conduct of the proceedings not to return the applicant to Sri Lanka until the Court had had an opportunity to examine the application.

On 24 August 1999 the Court decided to communicate the applicant’s complaint under Article 3 of the Convention to the respondent Government.

The Government’s written observations were submitted on 15 November 1999, after an extension of the time-limit fixed for that purpose. The applicant replied on 17 January 2000.

THE LAW

1. The applicant maintains that his deportation to Sri Lanka would violate his rights under Article 3 of the Convention, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submit that the applicant has not exhausted domestic remedies given that the proceedings are still pending before the Council of State. In any event the Government allege that the applicant has not established that his deportation would expose him to a real risk of treatment contrary to Article 3 of the Convention.

The Court notes that the Council of State has ordered the temporary stay of execution of the administrative acts relating to the applicant’s expulsion. The issue of his expulsion is still pending. Under these circumstances the Court considers that domestic remedies have not been exhausted in respect of the alleged violation of Article 3.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

2. Invoking Article 5 § 1 f) of the Convention the applicant complains that he was illegally detained by administrative authorities without any prior conviction by a competent court. Under Article 5 §§ 4 and 5 of the Convention, he complains that he did not have any remedies for challenging the lawfulness of his lengthy detention and that he did not have a possibility to obtain compensation for his unlawful and unjustified detention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these new complaints under Article 5 §§ 4 and 5 and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the respondent Government.

3. The applicant complains that he did not receive a fair hearing before the administrative authorities which examined his various requests. In particular he complains that the decisions rejecting his applications for asylum were never served on him. He also complains that he was rarely assisted by an interpreter. He invokes Article 6 of the Convention.

Article 6 § 1 of the Convention provides as follows:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing …”

Even assuming that Article 6 applies in the present case, the Court notes that compliance with the requirements of a fair trial must be examined with reference to the proceedings as a whole, and not to a single aspect or incident. It is not however impossible that a particular procedural element could be so decisive to the proceedings that their conduct can be assessed at an earlier stage.

In the present case the Court notes that the applicant’s case is pending before the Council of State. Furthermore, the applicant has not substantiated his allegations that the decisions concerning his requests were never served on him. The Court also notes that the applicant was assisted by an interpreter of Tamil ethnic origin. It finds no indication that the proceedings complained of were unfair.

It follows that this part of the application 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,

DECIDES TO ADJOURN the examination of the applicant’s complaints under Article 5 §§ 4 and 5 of the Convention.

DECLARES INADMISSIBLE the applicant’s complaints under Articles 3 and 6 of the Convention.

Erik Fribergh Marc Fischbach Registrar President