AS TO THE ADMISSIBILITY OF
by Mustafa Gürsel ASLAN
The European Court of Human Rights (Second Section) sitting on 3 February 2000 as a Chamber composed of
Mr C.L. Rozakis, President,
Mr M. Fischbach,
Mr B. Conforti,
Mr G. Bonello,
Mr P. Lorenzen,
Mr E. Levits, judges,
and Mr E. Fribergh, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 October 1995 by Mustafa Gürsel Aslan against Malta and registered on 7 December 1995 under file no. 29493/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 14 March 1997 and the observations in reply submitted by the applicant on 12 May 1997;
Decides as follows:
The applicant is a Turkish citizen, born in 1961 and living in Ankara. He is represented before the Court by Mr N. Göğüsdere, a lawyer practising in Ankara.
The facts of the present case, as submitted by the parties, may be summarised as follows.
A. Particular circumstances of the case
At the material time the applicant was working in Libya as an international doctor for the General Management of Mesa Construction Company (“the company”), a Turkish construction company.
The applicant, together with his two colleagues, Hasan Yıldız (one of the company engineers) and Ramazan Buber (the company accountant) decided to pay a four-day visit to Malta in May 1995. They took the ferry boat (“the Hanaa”) from Tripoli and arrived in Malta at 8 a.m. on 6 May 1995.
When they reached the passport control point the police questioned them about their visit to Malta. The applicant replied that he would be staying for four days and that he had six hundred dollars on him. Despite the fact that the applicant had a valid visa for entering and leaving Malta, issued in Libya, the police claimed that there appeared to be a problem in respect of his return visa to Libya and that he had to wait.
Although what the police said was unclear, the applicant did what he was told. His two colleagues were also faced with the same difficulties.
While they were waiting one of the police officers, referred to as “Mario”, approached them and started to insult the applicant and his colleagues for being Muslims and Turks. The applicant tried to explain that religion was a matter of belief and that people should respect rather than judge or discuss religion. The police officer became agitated, raised the tone of his voice and stated that the barbarian Turks had tried in the past to conquer the whole of Europe, that they had attacked Malta in 1565 and that the brave, heroic Maltese people had resisted and beaten them back, that Europe had been saved by the Maltese and that the Maltese knew these matters to be true as they had been taught them at school.
The Government maintain that this conversation never took place and stress that the “Mario” referred to by the applicant was not on duty at that part of the port at the time in question.
The applicant again attempted to explain that he and his colleagues could not be held responsible for events which had occurred 450 years ago and that they could not be used to justify a decision to deny them entry into Malta. The police refused to listen. At 8.30 a.m. the police took the applicant and his colleagues to another building. The police acted violently towards them and placed them in a cell.
The Government maintain that the applicants were at no stage assaulted by the police.
When the applicant and his colleagues enquired about the crime they were supposed to have committed to warrant being locked up, the officer in charge replied that no mistake had been made and since they did not have a return visa for Libya they were going to be sent back to Libya on the same ferry. The applicant and his colleagues protested that their visas were valid and stated that even if they did not have a return visa for Libya, it was pointless to send them back there. They pointed out that if they were not allowed to enter Malta, they had enough money to buy plane tickets to fly to Turkey and indeed could have gone to Turkey for their holiday under those conditions. The officer in charge laughed at them, saying that they should have considered this before coming to Malta and that they would not be allowed out for any reason. The officer also forcibly seized their camera, removed the film and burned it.
At about 2 p.m. the officers' shift changed. New officers took over. Although they explained their situation to the new officers, there was no change in the outcome. They told the police that they could not keep them in cells even if they did not grant them leave to enter Malta. The applicants were threatened that "worse" might happen if they did not shut up.
At about 2.30 p.m. the "Hanaa" began embarking passengers for the journey to Libya. The applicant and his colleagues asked the police to let them get on it. The police said they would let them go to the ferry just before it departed.
The Government state that it is the practice of the ferry master not to allow “inadmissible passengers” such as the applicant on board until one hour before sailing.
The applicant and his colleagues were given nothing to eat or drink for thirty hours. Those who needed to use the toilet facilities had to call the warder who took them one by one. If it was not convenient for him, he simply said "later". The Government dispute these allegations and assert that the detention only lasted a maximum of ten hours.
The applicant and his colleagues were taken out between 6.45 p.m. and 7 p.m. and brought to the ferry. Their passports were given to the Libyan officer in charge of the ferry.
When the Libyan officer asked why they had not been granted leave to enter Malta, they explained that the Maltese officials had claimed that they did not have return visas for Libya. The Libyan officer, after having examined their passports and after having seen that everything was in order, went to the Maltese sergeant and asked why they had not been granted entry. The Maltese sergeant said that the applicant and his two colleagues did not have return tickets for Libya. The applicant insisted that they did have return tickets. The answer of the Maltese sergeant was "they came with this ship and they are going to go back with this ship".
Following their return to Libya, the applicant complained to the General Consulate of Malta in Libya. The Consulate replied on 21 May 1995 stating that they would investigate the matter, but the outcome of this investigation is unknown. In a letter dated 14 June 1995 the Turkish Embassy to Libya raised the applicant’s complaints with the Embassy of Malta to Libya. On 10 October 1995 the latter Embassy replied that:
“(...) the three passengers did not completely satisfy the requirements of the Immigration Authorities and on more than one account, there were reasons to believe that the Turkish passengers could not possibly be considered as bona fide travellers and were thus inadmissible under the immigration and national security regime (...)”
The Embassy’s letter of reply also affirmed that the applicant and his colleagues had been treated with dignity and respect.
B. Relevant domestic law
Section 5(1) of the Immigration Act provides:
“Any person who, not having been granted a residence permit, lands or is in Malta without leave of the Principal Immigration Officer shall be a prohibited immigrant.”
Section (2)(a) of the same Act states:
“Notwithstanding that he has landed or is in Malta with the leave of the Principal Immigration Officer or that he has been granted a residence permit, a person shall also be a prohibited immigrant if:
(a) he is unable to show that he has the means of supporting himself and his dependants (if any) or if he or any of his dependants are likely to become a charge on public funds;”
Section 10 stipulates:
“(1) Where leave to land is refused to any person arriving in Malta on an aircraft, such person may be placed temporarily on shore and detained in a place approved by the Minister and notified by notice in the Government Gazette until the departure of such aircraft is imminent.
(2) Where leave to land is refused to any person arriving in Malta by any other means, such person at his own request may, with the leave of the Principal Immigration Officer, be placed temporarily on shore and detained in a place approved by the Minister and notified by notice in the Government Gazette;
Provided that he shall be returned to the vessel by which he is to leave Malta immediately that he makes a request to that effect or that the Principal Immigration Officer so directs, whichever is earlier.
(3) Any person, while detained under subsections (1) or (2) of this section shall be deemed to be in legal custody and not to have landed.”
Section 16 provides:
“Any person who acts in contravention of section 5(1) of this Act or is reasonably suspected of having so acted, may be taken into custody without warrant by the Principal Immigration Officer or by any police officer and while he is so kept in custody he shall be deemed to be in legal custody:
Provided that, without prejudice to prosecution for any offence under this Act, such person shall be released if he has not been charged with such offence within forty-eight hours of his having been so taken into custody.”
The applicant complains that his detention by the police on his arrival in Malta was unlawful and arbitrary and infringed his right to liberty and security of person and deprived him of his freedom of movement.
The applicant further complains that he was subjected to degrading treatment during his detention. He complains that he was deprived of food and drink for thirty hours, held incommunicado without access to his family and his request to make a phone call was rejected. He was allowed to use toilet facilities only when it suited the warders.
The applicant also alleges that he was subject to constant abuse from the police over thirty hours, in breach of his right to respect for his honour, reputation and private life.
The application was introduced on 10 October 1995 and registered on 7 December 1995.
On 15 January 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.
The Government’s written observations were submitted on 14 March 1997. The applicant replied on 12 May 1997.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
A. The Government’s preliminary objection: non-exhaustion
The Government submit that the applicant failed to exhaust domestic remedies in respect of his complaints and on that account his application should be declared inadmissible. They contend that it would have been open to the applicant to contact a lawyer and initiate a court procedure. A domestic court would have heard his case on the same day. The Government also maintain that even after his departure from Malta, the applicant could have filed an application with the First Hall of the Civil Court in respect of his complaints which would have allowed him to plead in a simple and inexpensive procedure that his rights under the Convention were violated. This he could have done by mandating an agent in Malta. Indeed, the applicant may still avail himself of this possibility since his claim is not time-barred under Maltese law.
The applicant maintains in reply that it would be impossible for him to file a complaint with the Maltese courts since to do so would require him to go to Malta in order to brief a lawyer fully about his case, especially in view of the defence answers which the Government have submitted to his complaints. However, as shown by the facts of the case, he would not be given leave to land in Malta and would be detained. The applicant further asserts that his letter of complaint to the General Consulate of Malta to Libya received no follow-up, a factor which must be weighed in the balance when examining the Government’s reliance on the effectiveness of a court action initiated from abroad.
The Court considers that it does not have to pronounce on the Government’s objection since the application is inadmissible on other grounds.
(i) As to the complaint under Article 5 of the Convention
The applicant complains that he was unlawfully deprived of his liberty, in breach of Article 5 § 1 of the Convention which provides as relevant:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
The applicant insists that his documentation was in order when questioned by the port officials and that there was no justification for placing him in detention in a cell, an environment which is hardly compatible with “a place approved by the Minister” within the meaning of section 10 of the respondent State’s Immigration Act. In his submission the treatment meted out to him and his colleagues establish that he is the victim of systematic discrimination on account of his race and religion. The applicant contends that he can identify the police officer called “Mario” who harangued him about his race and religion.
The Government contend that the applicant’s re-entry visa for Libya had expired, he only had USD 600 on him at the time and he had no onward ticket for another destination. Furthermore, the police satisfied themselves that there was no Maltese friend of the applicant awaiting his arrival at the port, as was in fact claimed by the applicant at the time. The Government draw attention to their claim that the applicant’s account that he was detained for thirty hours is untrue. In their submission the ferry moored at 8 a.m. on 6 May 1995 and left its berth at 6. 50 p.m. on the same day, a time-span of only ten hours.
The Government stress that when he temporarily detained the applicant the Immigration Officer was complying with the Immigration Act. In this connection the Government state that the applicant was never in fact given permission to land. Furthermore, since it is the practice of the master of the Libyan ferry not to allow any person back on board once it has moored, the applicant had no option but to comply with the directions of the Immigration Officer and be placed in temporary detention pending his re-embarkation for the next sailing. As to the applicant’s assertion that he was not allowed to embark on the ferry when it began embarking passengers at 2.30 p.m. the Government stress that “inadmissible passengers” are only authorised by the ferry master to go on board one hour before departure, namely as of 5.50 p.m. The applicant fell into this category.
The Government also submit that the only police officer named “Mario” who patrolled the port was working at a considerable distance from the spot where the applicant was allegedly insulted. Furthermore, that officer confirmed that he neither saw nor spoke to the applicant during his brief five-minute visit to that part of the port on the day in question.
For the above reasons, the Government maintain that the applicant’s detention was lawful and effected in accordance with a procedure prescribed by law. On that account the complaint should be declared inadmissible as being manifestly ill-founded.
The Court recalls that subparagraph (f) of Article 5 § 1 requires in the first place that the detention be “lawful”, which includes the condition of compliance with a procedure prescribed by law. The Convention here refers back essentially to national law, but it also requires that any deprivation of liberty be in conformity with the purpose of Article 5, namely to protect individuals from arbitrariness (see, for example, the Quinn v. France judgment of 22 March 1995, Series A no.311, §47, pp. 18-19).
In the Court’s opinion the measure taken against the applicant had its basis in the provisions of the respondent State’s immigration rules, in particular section 10 of the Immigration Act. The detention was accordingly in accordance with a procedure prescribed by law as required by the first paragraph of Article 5. As to the applicant’s contention that his detention was arbitrary, the Court observes that the port officials considered that on the basis of the documentation which he produced there were grounds for refusing him leave to enter. The documentation produced by the applicant at the border control point raised in the minds of the port officials suspicions about the sincerity of his reasons for entering the country. It is not for the Court to impugn that assessment. It recalls in this connection that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including Articles 3 and 8, to control the entry, residence and expulsion of aliens (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, § 102, p. 34). For that reason also the Court does not consider it necessary to address the applicant’s argument that the sole reason for refusing him leave to enter and detaining him pending his return to Libya was on account of his nationality or religion.
Furthermore, the applicant has not disputed the Government’s assertion that the detention lasted only up until the time of the next sailing, a period of some ten hours.
For the above reasons the Court concludes that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
(ii) As to the alleged breach of Article 3 of the Convention
The applicant contends that he was subjected to degrading treatment in breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
In the applicant’s submission he and his colleagues were pulled and pushed out of the waiting room at about 8 .30 a.m. and taken to the cells. Like his colleagues, he was held there until 6.45 p.m. on the same day when he was taken to the ship. During his detention he was kept in dirty and unsanitary conditions, restricted in his use of toilet facilities, given neither food nor drink and denigrated on account of his religion and national origin.
The Government affirm that at no stage did the police use violence against the applicant. Nor were they humiliated or subjected to any form of racial discrimination or other abuse. He and his colleagues were given food and drink and were allowed to use toilet facilities when requested.
The Court considers that the applicant has not substantiated that the conditions of their detention, even if unpleasant as alleged, were such as to give rise to any appearance of a breach of Article 3 of the Convention. Furthermore, the applicant has not disputed the Government’s statement that he and his colleagues were held for ten hours and not thirty as was claimed in his application. Although the applicant maintains that he was held incommunicado during this period, it would appear from the case file that he was not segregated from his colleagues and kept in social isolation.
The Court cannot condone the making of racist or other such provocative utterances by State officials during border controls. However, and without pre-judging whether any such remarks were directed against the applicant, the Court considers that the conduct described does not amount to degrading treatment within the meaning of Article 3 of the Convention.
The Court concludes that the applicant’s complaint under this head is inadmissible as being manifestly ill-founded within the meaning of Articles 35 §§ 3 and 4 of the Convention.
(iii) As to the alleged breach of Article 8 of the Convention
The applicant states that the circumstances of his detention give rise to a breach of Article 8, which provides as relevant:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.(...)”
The applicant maintains that his requests to make a telephone call and to have the Consulate of Turkey informed that he was in detention were refused. He also complains with reference to Article 8 that his honour and dignity were denigrated on account of the insults levelled against him in connection with his race and religion.
The Government state that they have no record of the applicant ever having made a request to make a telephone call, nor that any such request was refused. In practice persons in a situation similar to that of the applicant’s are allowed to make a call as long as they are in possession of a telephone card.
The applicant states in reply that persons in his situation would not be in possession of a telephone card given that they have been refused leave to land and are restricted in their liberty.
The Court notes that there is no interference as such by the port police with the applicant’s exercise of his rights under Article 8 of the Convention. It further considers that in the circumstances of the case, including the limited duration of the detention and the absence of a Convention right to enter the territory of the respondent State, there is no appearance of any breach of a positive obligation on the part of the authorities to provide the applicant with access to communication or correspondence facilities. Furthermore, Article 8 does not as such guarantee the right to honour and dignity in the absence of any prejudice to an applicant’s right to respect for his private life. The applicant has not substantiated any such prejudice.
It concludes that the applicant’s complaint under Article 8 is inadmissible as being manifestly ill-founded within the meaning of Article 34 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Erik Fribergh Christos Rozakis
29493/95 - -
- - 29493/95