JOINT PARTLY DISSENTING OPINION OF JUDGES GÖLCÃœKLÃœ AND MAKARCZYK  

(Translation) 

We agree with the dissenting opinion of Judge De Meyer as regards Article 5 para . 1 (art. 5-1) (Part II.A).  

PARTLY DISSENTING OPINION OF JUDGE PETTITI  

(Translation) 

I voted in favour of finding a violation of Article 3, Article 5 para . 4 and Article 13 (art. 3, art. 5-4, art. 13).  However, I strongly disagree with the majority in respect of Article 5 para . 1 (art. 5-1) and consider that there has been a clear and serious violation of that provision (art. 5-1). 

Some weeks earlier, the Court correctly identified the problem of administrative detention in the case of proceedings covered by the Geneva Convention of 1951, and within the province of the Office of the United Nations High Commissioner for Refugees ("the UNHCR").  The Court held that there had been a violation by France on account of the rules then in force on administrative detention for a period of approximately twenty days without access to lawyers or any effective judicial review (see the Amuur v. France judgment of 15 June 1996, Reports of Judgments and Decisions 1996-III).  The second period of detention in the Chahal case gives rise to the same types of problems. 

With respect to the decision taken under the general law to deport Mr Chahal , it was not disputed that his detention began on 16 August 1990 and that he applied for judicial review. 

After his application for asylum as a political refugee had been refused, a deportation order was made on 25 July 1991 on the basis of the Geneva Convention.  Mr Chahal's detention fell to be considered by the Court from that angle.  There was therefore a confrontation between the Geneva Convention and the European Convention on Human Rights, which concern the same member States.  States may expel persons who are denied political refugee status.  If difficulties are encountered (with respect to travel, dangers that might be encountered on returning, or the search for a safe State or third State), the person must be placed in administrative detention and not held in an ordinary prison under a prison regime.  In addition, the detention must be reviewed promptly by the courts (see the Amuur judgment cited above). 

Mr Chahal was not detained as a result of any conviction. 

Where an application is made for review, it must be heard expeditiously, as a matter of urgency.  The organisation of review procedures is governed by the Geneva Convention and UNHCR resolutions. It is possible to petition the Commission on Human Rights of the United Nations in that regard.  The European Court cannot review the procedures, but it can consider them under Articles 3 and 5 (art. 3, art. 5) when a violation is alleged. 

It is almost perverse of the majority to argue, as it does, that since it was the applicant who sought a review, his detention was justified if the proceedings became protracted.  Were this reasoning to be transposed, an accused who applied for release from custody pending trial would be told that his detention was justified by the fact that he had made an application that necessitated proceedings. Yet liberty of the person is a fundamental right guaranteed by Article 5 (art. 5).

The fact that an application for release is pending cannot be a ground for detention being prolonged where the detention is contrary to the provisions of Article 5 (art. 5).   Five years' detention in prison after the deportation order following the refusal of refugee status: such has been Mr Chahal's lot. 

It is obvious that in international law under the Geneva Convention administrative detention differs from detention under the general law and must be enforced by measures such as an order for compulsory residence on administrative premises or in a hotel (see the Amuur judgment cited above) or house arrest.  The United Nations Covenants and the recommendations of the United Nations Sub-Committee on questions of human rights of all persons subjected to any form of detention or imprisonment must be heeded. 

Where a State is faced with a difficulty arising out of the danger that would be entailed by a return to the country of origin, it may, if it does not wish to continue to detain the person on its territory, negotiate the choice of a third country. 

In sensitive political cases such as that of Mr Chahal - for example, those concerning the expulsion of imams and religious leaders whether fundamentalists or not - European States have found alternatives by expelling to certain African countries.  The United Kingdom itself has had recourse to such expedients. 

The European Convention does not allow States to disregard their obligations under the Geneva Convention.  The Court must be attentive to problems of potential conflicts between international inter-State instruments binding the member States of the Council of Europe. 

My opinion on this subject is based on the work of the UNHCR and on the European Commission's and Court's own decisions. 

In the UNHCR publication "Detention and Asylum" (European Series, vol. 1, no. 4, October 1995) it is stated: 

"Article 5 (art. 5) further provides guarantees against undue  prolongation of the detention.  Neither the Geneva Convention,  nor the Committee of Ministers guidelines provide for a  maximum duration of the detention of persons seeking asylum.  In its Conclusion No. 44 the UNHCR Executive Committee  recognises the importance of expeditious procedures in  protecting asylum-seekers from unduly prolonged detention.  Article 5, para . 1 (f) (art. 5-1-f), as interpreted by the  Court, should be understood as containing a safeguard as to  the duration of the detention authorised, since the purpose of  Article 5 (art. 5) as a whole is to protect the individual  from arbitrariness.  In its Bozano judgment (18 December 1986,  Series A no. 111, p. 23, para . 54), the Court considered that  this principle was of particular importance with respect to  Article 5, para . 1 (f) of the Convention (art. 5-1-f).  This  provision (art. 5-1-f) certainly implies - though it is not  made explicit - that detention of an alien which is justified  by the fact that proceedings concerning him are in progress  can cease to be justified if the proceedings concerned are not  conducted with due diligence. 

...   [And, with reference to paragraph III.10 of  Recommendation No. R (94) 5 of the Committee of Ministers on  Guidelines to inspire practices of the member States of the  Council of Europe concerning the arrival of asylum-seekers at  European airports:]   `

10. The asylum-seeker can be held in [an appropriate] place  only under the conditions and for the maximum duration  provided for by law.' 

Under Article 5 (art. 5), a measure amounting to a deprivation  of liberty will only comply with the requirements of the  Convention if it is legal in domestic law.  Article 5 para . 1  (art. 5-1) lays down that any arrest or detention must be  carried out `in accordance with a procedure prescribed by  law'.  On this point the Convention first and foremost  requires that any deprivation of liberty must have a legal  basis in domestic law.  Deprivation of liberty cannot occur in  the absence of a domestic legal provision expressly  authorising it.  It further refers back to this national law  and lays down the obligation to conform to both the  substantive and procedural rules thereof." 

As regards decisions on Article 5 (art. 5) of the European Convention on Human Rights, in the case of Kolompar v. Belgium (judgment of 24 September 1992, Series A no. 235-C, p. 64, para . 68), the Commission delivered the following opinion on an extradition problem, which can be transposed to deportation cases: 

"However, the Commission considers that there is also, in the  present case, a problem of State inactivity.  The Commission  recalls that Article 5 para . 1 of the Convention (art. 5-1)  states that there is a `right to liberty', and that the  exceptions to this right, listed in sub-paragraphs (a) to (f)  of this provision (art. 5-1-a, art. 5-1-b, art. 5-1-c,  art. 5-1-d, art. 5-1-e, art. 5-1-f), have to be narrowly  interpreted (Eur. Court H. R., Winterwerp v. the Netherlands  judgment of 24 October 1979, Series A no. 33, p. 16, para . 37; Guzzardi v. Italy judgment of 6 November 1980, Series A  no. 39, p. 36, para . 98).  The Commission takes the view that  the State from which extradition is requested must ensure that  there is a fair balance between deprivation of liberty and the  purpose of that measure.  Being responsible for the detention  of the individual whose extradition has been requested, this  State must take particular care to ensure that the  prolongation of the extradition procedure does not culminate  in a lack of proportionality between the restriction imposed  on the right to individual liberty protected by Article 5  (art. 5) and its international obligations in respect of  extradition.  The Commission therefore considers that, even  assuming total inactivity by the applicant in the said  proceedings, it was the Government's duty to take particular  care to limit the applicant's detention pending  extradition ..." 

The Court held in the Kolompar case that there had been no violation, but that was because of the applicant's prolonged inactivity and conduct and not because it did not fall within the scope of Article 5 para . 1 (art. 5-1). 

It is only in cases where persons who have been refused asylum commit an offence (for instance, by returning illegally) that they may be detained in prison. 

It is clear from past cases that if proceedings are not conducted with the requisite diligence, or if detention results from some misuse of authority, detention ceases to be justifiable under Article 5 para . 1 (f) (art. 5-1-f) (application no. 7317/75, Lynas v. Switzerland, decision of 6 October 1976, Decisions and Reports 6, p. 167; Z. Nedjati , Human Rights under the European Convention, 1978, p. 91). 

The European Court 's judgment of 1 July 1961 in the case of Lawless v. Ireland (Series A no. 3) also sheds much light on its case-law concerning the scope of Article 5 para . 1 (art. 5-1) - a major Article of the Convention (art. 5-1) as it secures the liberty of person. 

Admittedly, the Lawless case had as its background a state of emergency, but that does not alter the philosophy and principles expressed by the Court. 

In particular, the Court said in its judgment on the merits: 

"Whereas in the first place, the Court must point out that the  rules set forth in Article 5, paragraph 1 (b) (art. 5-1-b),  and Article 6 (art. 6) respectively are irrelevant to the  present proceedings, the former because G.R. Lawless was not  detained 'for non-compliance with the ... order of a court' or  'in order to secure the fulfilment of [an] obligation  prescribed by law' and the latter because there was no  criminal charge against him; whereas, on this point, the Court  is required to consider whether or not the detention of  G.R. Lawless from 13th July to 11th December 1957 under the  1940 Amendment Act conflicted with the provisions of  Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3); 

Whereas, in this connection, the question referred to the  judgment of the Court is whether or not the provisions of  Article 5, paragraphs 1 (c) and 3 (art. 5-1-c, art. 5-3),  prescribe that a person arrested or detained `when it is  reasonably considered necessary to prevent his committing an  offence' shall be brought before a judge, in other words  whether, in Article 5, paragraph 1 (c) (art. 5-1-c), the  expression `effected for the purpose of bringing him before  the competent judicial authority' qualifies only the words  `on reasonable suspicion of having committed an offence' or  also the words `when it is reasonably considered necessary to  prevent his committing an offence'; 

Whereas the wording of Article 5, paragraph 1 (c)  (art. 5-1-c), is sufficiently clear to give an answer to this  question; whereas it is evident that the expression `effected  for the purpose of bringing him before the competent  legal authority' qualifies every category of cases of arrest  or detention referred to in that sub-paragraph (art. 5-1-c);  whereas it follows that the said clause (art. 5-1-c) permits  deprivation of liberty only when such deprivation is effected  for the purpose of bringing the person arrested or detained  before the competent judicial authority, irrespective of  whether such person is a person who is reasonably suspected of  having committed an offence, or a person whom it is reasonably  considered necessary to restrain from absconding after having  committed an offence;

... 

Whereas the meaning thus arrived at by grammatical analysis is  fully in harmony with the purpose of the Convention which is  to protect the freedom and security of the individual against  arbitrary detention or arrest; whereas it must be pointed out  in this connexion that, if the construction placed by the  Court on the aforementioned provisions (art. 5-1-c, art. 5-3)  were not correct, anyone suspected of harbouring an intent to  commit an offence could be arrested and detained for an  unlimited period on the strength merely of an executive  decision without its being possible to regard his arrest or  detention as a breach of the Convention ..." (pp. 51-52, paras . 12-14) 

Under the Geneva Convention, it is for each State to organise its appeal procedures in respect of matters arising under the Convention. 

The effectiveness of those procedures is reviewable by the UNHCR and, if necessary, in the event of any shortcomings, may be the subject of the applications mentioned above. 

Among the major western European States , Germany provides a right of appeal to the ordinary courts.  Other States have a special court or a committee.  Such an institution was set up in Belgium only in 1989 (Standing Committee for Refugee Appeals) and in Sweden in January 1992 (Aliens Appeals Committee).  In the United Kingdom it was only with the coming into force of the Asylum and Immigration Appeals Act 1993 that applicants whose appeals for asylum had been refused were given a right of appeal (to the Immigration Appeals Authority).  In France there is the French Office for the Protection of Refugees and Stateless Persons (the "OFPRA") and the Appeals Committee (commission de recours ) (see Bulletin luxembourgeois des droits de l'homme , vol. 5, 1996). 

States are not legally bound to grant asylum, but merely not to send a person to a country where he faces persecution or to one from which he risks being sent to such a country.  This has prompted most European nations to adopt the practice of returning asylum-seekers either to a country through which they have transited in order to travel to the country where they are seeking asylum or else to a "safe third country". 

The Court has firmly found violations of Article 3 and Article 5 para . 4 (art. 3, art. 5-4).  In my opinion, it was equally necessary for it to find a violation of Article 5 para . 1 (art. 5-1), in line with its case-law. 

As implemented by the British authorities, Mr Chahal's detention can be likened to an indefinite sentence.  In other words, he is being treated more severely than a criminal sentenced to a term of imprisonment in that the authorities have clearly refused to seek a means of expelling him to a third country.  The principle contained in Article 5 (art. 5) of immediately bringing a detained person before a court is intended to protect liberty and not to serve as "cover" for detention which has not been justified by a criminal court.  Administrative detention under the Geneva Convention cannot be extended beyond a reasonable - brief - period necessary for arranging deportation.  The general line taken by the Court in the Amuur case can, in my view, be adopted in the Chahal case.  For this reason, I have concluded that there has been a violation of Article 5 para . 1 (art. 5-1). 

So far as Article 8 of the Convention (art. 8) is concerned, I share the views of Mr De Meyer.