Information Note on the Court’s case-law 58

November 2003

Shamsa v. Poland - 45355/99 and 45357/99

Judgment 27.11.2003 [Section III]

Article 5

Article 5-1

Lawful arrest or detention

Detention for several days without any order by a court, a judge or any other person authorised to exercise judicial functions: violation

Deprivation of liberty

Holding in the transit zone of an airport of deportees who refused t o leave the country

Facts : In May 1997, the applicants, who are brothers and Libyan nationals then residing in Warsaw, were arrested during an identity check. On 28 May 1997, an expulsion order, to be executed within no more than 90 days, was made against them and they were detained pending expulsion. Beginning on 24 August 1997, the final day of the statutory period during which the applicants could be expelled, the authorities attempted on three occasions to expel them via Prague, and then Cairo and Tunis . These attempts were unsuccessful, owing, in particular, to the refusal of the persons concerned. Upon returning to Prague, on 25 August 1997, the applicants, at the request of the chief of police in Warsaw, were considered to be persons whose presence on Polish territory was undesirable. Between the attempts to expel them and 3 October, the applicants were held by the immigration authorities at Warsaw Airport. The applicants considered that they had been unlawfully detained by the authorities between 25 A ugust and 3 October 1997 and lodged a complaint. The complaint was dismissed. The judicial authorities considered that by refusing to be expelled to Libya, the applicants had chosen of their own free will to remain at the premises of the immigration author ities.

Law : Article 5 § 1 – The Government could not validly maintain that, in the area reserved for persons not authorised to enter Polish territory, the applicants did not come under Polish law. The Court observed that the applicants were under the perma nent supervision of the immigration authorities, could not exercise freedom of movement and had to remain at the disposal of the Polish authorities, and concluded that their being kept in the area reserved for persons not permitted to enter Polish territor y must be analysed as a “deprivation of liberty”.

The decision to expel the applicants had to be executed within a statutory period of 90 days, failing which the law required that they be released; however, that was not done. The rules applicable to the i mmigration authorities’ post at the airport, where the applicants were being held, did not constitute sufficient legal bases to authorise their being deprived of their freedom following the expiry of the statutory period for their expulsion.

The Polish legislation lacks “foreseeability”, since it does not lay down any precise provision stating whether the applicants could be detained with a view to their expulsion, after the expiry of the statutory period, in the area reserved for persons whos e presence on Polish territory is considered undesirable, and if so on what conditions. The applicants’ detention was therefore not “in accordance with the law” or “lawful”.

The Court considers that detention in the transit area for an indeterminate and u nforeseeable period without legal basis or a valid court decision is in itself contrary to the principle of legal certainty. It further considers that detention for a number of days which is not ordered by a court, a judge or “any other person authorised b y law to exercise judicial power” is contrary to Article 5 § 1.

Conclusion : violation (unanimous).

Article 41 – The Court awards compensation for non-pecuniary harm and a sum for costs and expenses.

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

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