Information Note on the Court’s case-law 48

December 2002

Shamsa v. Poland (dec.) - 45355/99 and 45357/99

Decision 5.12.2002 [Section III]

Article 5

Article 5-1

Lawful arrest or detention

Confinement, pending deportation, to premises of airport border police: admissible

In May 1997, the two applicants, who are brothers and Libyan nationals, were detained during a check on identity papers and residence permits.  T he prefect made a deportation order against them, to be enforced within 90 days.  Between 24 August 1997, the final day of their detention and of the statutory period for deportation, and 11 September 1997, the authorities made three unsuccessful attempts to deport them to Libya.  As there were no direct flights, the applicants were placed on flights changing in Prague, Cairo and Tunis, but were returned each time by the authorities of the country of transit because they refused to continue the journey.  Be tween these attempts to deport them, and following their return from Tunis, the applicants, who were regarded as undesirables on Polish territory, were held by the immigration authorities at Warsaw airport.  On 3 October 1997, the applicants, who had been admitted to hospital following a hunger strike, left it by their own means without any intervention by the authorities.  In the meantime the prefect’s decision was confirmed.  The applicants had appealed against that decision and in September 1997 the Supr eme Administrative Court had stayed enforcement of the deportation procedure.  In September 1998, the Supreme Court held that the second applicant must be regarded as lawfully residing on Polish territory.  In January 1998, the district prosecutor terminat ed the proceedings following a complaint by the applicants concerning their detention by the immigration authorities between 25 August and 3 October 1997.  He considered that the regulations governing the immigration authorities at Warsaw airport constitut ed the legal basis for their detention.  According to those regulations, travellers are placed in the premises of the immigration authorities for the purposes of deportation until they are handed over to a third party for the journey.  The prosecutor furth er observed that an attempt to enforce the prefect’s deportation order had been made on the final day of the statutory period but had been unsuccessful because the applicants had resisted.  On appeal by the applicants, the regional prosecutor annulled that decision and referred the case back for reconsideration.  However, the district prosecutor terminated the proceedings.  He stated that each international airport had an area set aside for persons who were not authorised to enter the national territory.  T hat area was no longer regarded as a place of detention for the purposes of deportation since persons who had been placed there were regarded as having been deported from the country.  He concluded that the applicants had chosen of their own free will to r emain at the immigration authorities’ premises, which were not suitable for a long-term stay, being normally used as transit rooms, by refusing to be deported to Libya.  That decision was upheld at last instance on the ground that the applicants had never been deprived of their freedom and that immigration officers had placed them in the premises at the airport in order to protect the national border.  The applicants were still residing on Polish territory on the date on which the Court adopted its decision .

Admissible under Article 5 § 1.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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