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FIRST
SECTION
CASE OF RUSU v. AUSTRIA
(Application
no. 34082/02)
JUDGMENT
STRASBOURG
2 October
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rusu v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34082/02) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mrs Cornelia Rusu (“the
applicant”), on 12 August 2002.
- The
applicant, who had been granted legal aid, was represented by Mrs C.
Vasii-Kolla, a lawyer practising in Timisoara. The Austrian
Government (“the Government”) were represented by their
Agent, Ambassador F. Trauttmansdorff, Head of the International Law
Department at the Federal Ministry of European and International
Affairs. The Romanian Government did not make use of their right to
intervene under Article 36 § 1 of the Convention.
- The
applicant alleged, in particular, that her detention pending her
expulsion had been unlawful and that she had not been informed
promptly of the reasons for her detention.
- By
a decision of 29 June 2006 the Court declared the application partly
admissible.
- Neither
party filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Timisoara, Romania.
- On
24 February 2002 the applicant's passport and luggage were stolen in
Nice when she was on her way back to Romania from a journey in Spain.
After the French police had provided her with a document certifying
that she had declared the theft, she continued her trip via Italy and
Austria.
- On
25 February 2002 the Hungarian border police refused the applicant
leave to enter Hungary and sent her back to the Austrian border
police; on the same day, the Neusiedl/See District Administrative
Authority (Bezirkshauptmannschaft) ordered her detention with
a view to her expulsion pursuant to section 61(1) of the Aliens Act
1997 (Fremdengesetz 1997). The reasoning read as follows:
“You entered Austrian territory, coming from
Italy, at 10.30 a.m. on 25 February 2002 at 2425 Nickelsdorf (marker
stone A29-30), circumventing border controls and without being in
possession of a valid travel document and stamp. On 25 February 2002
at 10.30 a.m. you were apprehended by border control officials.
Your entry into and stay in Austria are therefore
illegal. You do not have any fixed accommodation in Austria, nor do
you have sufficient funds to finance your stay.
The Neusiedl/See District Administrative Authority has
instituted proceedings for your deportation with a view to your
expulsion from the country.
In view of the foregoing there is reason to fear that,
if released, you would abscond and seek to evade the proceedings.”
- The
order for the applicant's detention with a view to her expulsion
(Schubhaftbescheid), issued in German and consisting of two
pages, included instructions as to available remedies
(Rechtsmittelbelehrung), referring in particular to a
complaint to the Independent Administrative Panel (Unabhängiger
Verwaltungssenat) against the lawfulness of the order, arrest or
detention. It was handed to the applicant at around 6 p.m. together
with two information sheets in Romanian.
- Information
sheet I read as follows:
“Section A
You are hereby informed that you have been arrested by
law-enforcement officers (federal police/customs officers/Austrian
federal army) in accordance with section 43(1)(2) of the Aliens
Act because you entered Austria without reporting to the Border
Control Office and were apprehended immediately afterwards.
You are entitled to have a relative or other person
close to you advised of your arrest, at your request, without
unnecessary delay and according to your choice. In addition, the
consular representation of your country of nationality will be
immediately informed of your detention.
You will be immediately brought before the authority
responsible, namely the Neusiedl am See District Administrative
Authority, which will issue the subsequent orders.
Section B
I ... (Name) ... (Date of birth)..., would like the
following person to be advised of my arrest: ...
Would you like your consular representation in Austria
to be informed of your arrest? Yes O No O
By signing, I also confirm receipt of information sheet
I.
(Signature)”
- The
applicant filled in the form, asking that Mr L. B. [full name], whose
address and telephone number she indicated, be informed of her
arrest, and ticked the box indicating that she wished the consular
representation to be informed of her arrest. The applicant duly
signed the form.
- Information
sheet II read as follows:
“Section A
(1) You are informed that the Neusiedl am See
District Administrative Authority/Federal Police Directorate have, in
accordance with section 41(1) and (2) of the Aliens Act, ordered your
detention pending deportation as being necessary to secure your
expulsion or deportation to your country of nationality.
Aliens, that is to say, persons who are not Austrian
citizens, may, according to section 35(1)(1) of the Aliens Act, be
required to return to a foreign country if they have entered Austria
without reporting to the Border Control Office and have been
apprehended within 7 days.
According to section 17(2)(6), aliens may, in the
interest of public order, be expelled on the basis of an order if
they have entered Austria without reporting to the Border Control
Office and have been apprehended within 1 month.
In your case, you were arrested by law-enforcement
officers on 25 February 2002 at 10.30 a.m. after entering
federal territory in the ... local administrative area on 25 February
2002 at ... o'clock without reporting to the Border Control Office,
and therefore illegally.
(2) You are entitled to appeal to the
Independent Administrative Panel ('UVS' – Unabhängiger
Verwaltungssenat) of the Province of Burgenland, alleging the
unlawfulness of the order for your detention pending deportation,
your arrest or your detention. This appeal can be addressed to the
Independent Administrative Panel Burgenland, Neusiedlerstraße,
7000 Eisenstadt or to the Bezirkshauptmannschaft Neusiedl/See,
Eisenstädterstr. 1a, 7100 Neusiedl am See (designation and
address of the District Administrative Authority).
Please mark the envelope 'UVS-Beschwerde' ('UVS
Appeal').
(3) If you have not taken part in the
determination of your identity and nationality to the required extent
or if the approval necessary for entry has not been given by another
country, detention pending deportation can last for six months if
earlier deportation is not possible for these reasons.
Therefore it is above all in your interest to declare
any identity papers which may have been handed over to other persons
or hidden or thrown away in Austria, in particular travel documents,
or to have them sent by your relatives from your country of
nationality. Your participation in the determination of your identity
by your representation office can also considerably shorten your
detention pending deportation.
(4) If you have further questions you can
also address them in writing to Bezirkshauptmannschaft Neusiedl/See,
Eisenstädterstr. 1a, 7100 Neusiedl am See (designation and
address of the District Administrative Authority).
Section B
(1) Can you contribute to the determination
of your identity? Yes O No O
(2) Furthermore, I confirm by this signature
the receipt of information sheet II dated ...
(Signature)”
- The
applicant ticked the box stating that she could contribute to the
determination of her identity, and signed the information sheet
confirming that she had received it on 25 February 2002.
- That
evening she was transferred to the Graz police detention centre,
where she was issued with a leaflet in Romanian informing her of her
rights as a detainee (Informationsblatt für Festgenommene),
including the maximum length of police detention, the right to
consult a lawyer, the right to inform a person close to her and the
consulate, the right to obtain medical care, and her rights during
questioning. She also received and signed an information sheet
concerning assistance for persons in detention pending deportation
(Information über die Schubhaftbetreuung) in Romanian and
ticked the box for requesting such assistance. She also received a
short version of the internal prison rules.
- According
to the applicant, she then requested a lawyer and an interpreter in
order to be informed of the reasons for her arrest. She alleged that
her request had been ignored. In the Government's view these
submissions were misleading since the relevant information had been
provided to the applicant through information sheets I and II.
- On
26 February 2002 the Neusiedl/See District Administrative Authority
requested the Romanian embassy in Vienna to issue a provisional
travel document for the applicant's return and to do so speedily,
given the applicant's detention with a view to her expulsion. This
letter was dispatched and sent by registered post on 27 February 2002
and arrived at the Romanian embassy on 1 March 2002.
- Also
on 26 February 2002 the applicant called the Romanian embassy in
Vienna, which promised to issue her with a provisional travel
document by 1 March 2002. This did not happen, even after two more
phone calls by her to that effect.
- On 7 March 2002 the applicant was questioned at the
Graz police detention centre in the presence of an interpreter, for
the purpose of issuing an expulsion order. The minutes of this
interview were prepared in German. According to the minutes the
interpreter translated into Romanian the decision of 25 February 2002
ordering the applicant's detention with a view to her expulsion.
- The
applicant submitted that it was only then that she had learnt for the
first time that she was going to be expelled from Austria. The
Government contested this statement as being incorrect in the light
of the above submissions concerning information sheet II, which had
been handed to the applicant on 25 February 2002.
- On
13 March 2002 the Neusiedl/See District Administrative Authority
issued a deportation order (Ausweisungsbescheid) against the
applicant. The order was transmitted by fax to the Graz police
detention centre and handed to the applicant on 14 March 2002.
- On
the same day the Romanian embassy in Vienna issued a provisional
travel document, valid from 13 March until 13 May 2002, which was
received by the Neusiedl/See District Authority on 15 March 2002.
This document was transmitted to the Graz Federal Police Directorate
on 18 March 2002 and from there immediately to the Graz police
detention centre.
- On
15 March 2002 the Austria-Hungary liaison office (Kontaktbüro)
examined whether the applicant was prohibited from entering Hungary.
- On
22 March 2002 she was expelled by train from Austria via Hungary to
Romania.
II. RELEVANT DOMESTIC LAW
- At
the material time, the relevant provisions governing the arrest and
detention of aliens with a view to their expulsion and remedies
against such arrest and detention were contained in the Aliens Act
1997 (Fremdengesetz 1997), which entered into force on 1
January 1998.
A. Arrest and detention with a view to expulsion
- Section
61 governed detention with a view to expulsion. In so far as
relevant, it provided:
“(1) An alien may be arrested and
detained (detention with a view to expulsion) where this is necessary
in order to secure the conduct of the procedure for issuing an
exclusion order or an expulsion order until it becomes enforceable,
or in order to secure his or her expulsion, removal or transit. ...
(2) Detention with a view to expulsion shall
be based on an order. ...
...
(4) The decision to detain a person with a
view to his or her expulsion shall be amenable to appeal under
section 72.”
- Section
63 concerned the arrest of aliens. In so far as relevant, it
provided:
“(1) The law-enforcement agencies shall
be empowered to arrest an alien:
...
2. who is apprehended within seven days of
entering the country, if he or she has entered the country by
circumventing the border controls. ...”
- Section
66 dealt with less intrusive measures:
“(1) The authorities may refrain from
detaining a person with a view to his or her expulsion if they have
reason to believe that the same purpose can be achieved by means of
less stringent measures. ...
(2) Less stringent measures shall take the
form in particular of an order to reside in accommodation designated
by the authorities. Less stringent measures shall be implemented only
if the alien concerned agrees to the collection of personal
identification data, ...
(3) Following collection of his or her
personal identification data, the alien concerned shall reside in the
accommodation designated by the authorities and shall report every
other day to a police station designated for the purpose. ...”
- The
provisions referred to in the two information sheets (see paragraphs
10 and 12 above) were the relevant provisions of the Aliens Act 1992,
which was in force prior to 31 December 1997. Sections 17(2)(6) and
35(1)(1) governed the right to expel aliens who had entered Austria
illegally by circumventing border controls. Section 43(1)(2)
concerned the arrest of aliens who had been apprehended within seven
days of circumventing border controls, and section 41 concerned
detention with a view to expulsion.
B. Complaints to the Independent Administrative Panel
- Section
72 of the Aliens Act 1997, in so far as relevant, provided:
“(1) Persons arrested under section 63
or who have been or are being detained on the basis of this Federal
Law, shall have the right to apply to the Independent Administrative
Panel alleging the unlawful nature of the order for their detention
with a view to expulsion, or of their arrest or detention.”
- Section
73 of the Act, in so far as relevant, provided:
“(1) The Independent Administrative
Panel within whose judicial district the applicant was arrested shall
be competent to deal with the application.
(2) ...
2. The Independent Administrative Panel shall
give a decision on the alien's continuing detention with a view to
expulsion within one week, unless the alien's detention ends sooner.
...
(4) If the alien concerned remains in
detention, the Independent Administrative Panel must in any event
determine whether at the time of its decision the conditions for his
or her continuing detention with a view to expulsion are met. ...”
- Decisions
given by the Independent Administrative Panel may be challenged
before the Constitutional Court (Verfassungsgerichtshof) and
the Administrative Court (Verwaltungsgerichtshof).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
- The
applicant alleged a violation of Article 5 § 2 of the
Convention, which provides:
“Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- She
maintained that she had not been informed promptly, in a language
which she understood, of the reasons for her detention. She had
therefore not been in a position to exhaust the available remedies.
- The
Government asserted that on the day of her arrest the applicant had
been informed in Romanian of the reasons for her arrest and the
institution of expulsion proceedings against her. She had confirmed
receipt of that information by signing information sheets I and II.
The said information sheets also informed her of the possibility of
lodging a complaint with the Independent Administrative Panel
concerning the alleged unlawfulness of her detention. As she had not
made use of that possibility she had failed to exhaust domestic
remedies.
- The
Court observes that in its decision on admissibility it held that the
question of exhaustion of domestic remedies was closely linked to the
substance of the applicant's complaint under Article 5 § 2 of
the Convention, and therefore joined it to the merits.
- The
Court reiterates that paragraph 2 of Article 5 contains the
elementary safeguard that any person arrested should know why he is
being deprived of his liberty. This provision is an integral part of
the scheme of protection afforded by Article 5: by virtue of
paragraph 2 any person arrested must be told, in simple,
non-technical language that he can understand, the essential legal
and factual grounds for his arrest, so as to be able, if he sees fit,
to apply to a court to challenge its lawfulness in accordance with
paragraph 4. Whilst this information must be conveyed “promptly”
(in French: 'dans le plus court délai'), it need not be
related in its entirety by the arresting officer at the very moment
of the arrest. Whether the content and promptness of the information
conveyed were sufficient is to be assessed in each case according to
its special features (see Čonka v. Belgium, no. 51564/99,
§ 50, ECHR 2002-I, with further references).
- In
the present case the applicant was arrested on 25 February 2002 at
10.30 a.m. On the same day the Neusiedl/See District Administrative
Authority ordered her detention with a view to expulsion. This
decision was issued in German and was handed to the applicant on 25
February 2002 at 6 p.m. together with two information sheets in
Romanian.
- Information
sheet I stated that she had been arrested because she had entered
Austria without reporting to the Border Control Office, but did not
mention her specific situation, namely that she had tried to leave
Austria and had been arrested after the Hungarian border police had
returned her to the Austrian border police because she did not have a
valid travel document.
- Information
sheet II stated that “... [the authorities have] ordered your
detention pending deportation as being necessary to secure your
expulsion or deportation to your country of nationality ...”,
without indicating any reasons why the applicant's detention was
considered necessary in the specific circumstances of the case.
Information sheet II mentioned again that she had been arrested
because she had entered Austria without reporting to the Border
Control Office, but did not give any details. In addition it informed
the applicant that she could appeal to the Independent Administrative
Panel if she considered her arrest or detention to be unlawful.
- In
sum, the Court notes that the information sheets did not contain any
specific factual information concerning the applicant's arrest and
detention. Moreover, it observes that the legal provisions mentioned
in information sheets I and II were not the provisions of the Aliens
Act 1997 on which her arrest and detention were based. In fact the
information sheets still referred to the relevant provisions of the
Aliens Act 1992 (see paragraph 28 above).
- The
Court reiterates that there is a close link between paragraphs 2 and
4 of Article 5. Anyone entitled to take proceedings to have the
lawfulness of his detention speedily decided cannot make effective
use of that right unless he or she is promptly and adequately
informed of the reasons relied on to deprive him of his liberty (see
Van der Leer v. the Netherlands, judgment of 21 February 1990,
Series A no. 170 A, p. 13, § 28, and Shamayev and
Others v. Georgia and Russia, no. 36378/02, § 413, ECHR
2005 III).
- It
follows from the above considerations that the information given to
the applicant on the day of her arrest, that is, on 25 February 2002,
was inexact as to the facts and incorrect as to the legal basis of
her arrest and detention, and thus insufficient for the purpose of
Article 5 § 2 of the Convention. At that time she was therefore
not in a position to lodge a complaint before the Independent
Administrative Panel.
- It
was only ten days later, on 7 March 2002, that the applicant was
informed of the specific reasons and the correct legal grounds for
her detention: on that date she was questioned in the presence of an
interpreter for the purpose of issuing an expulsion order. According
to the minutes, the interpreter translated into Romanian the decision
of 25 February 2002 ordering the applicant's detention. However,
given the lapse of ten days, it cannot be said that the applicant was
informed “promptly” as required by Article 5 §
2 of the Convention (see, for instance, Saadi v. the United
Kingdom [GC], no. 13229/03, § 84, ECHR 2008 ..., in
which a delay of 76 hours was considered to be incompatible with
the requirement that the reasons for detention should be given
“promptly”).
- Returning
to the question of exhaustion of domestic remedies, the Court
considers that on 7 March 2002, when the applicant was finally
correctly informed of the reasons for her arrest and detention, she
could reasonably assume that her expulsion was already imminent. At
that time the expulsion order was being prepared and the Romanian
embassy had already promised a week earlier to issue her with a
provisional travel document.
- The
Court reiterates that the requirement of exhaustion of domestic
remedies laid down in Article 35 § 1 of the Convention must be
applied with some degree of flexibility and without excessive
formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; in
reviewing whether it has been observed it is essential to have regard
to the particular circumstances of each individual case (see Akdivar
and Others v. Turkey, judgment of 16 September 1996, Reports
of Judgments and Decisions 1996 IV, p. 1211, § 69). In
the specific circumstances of the present case, the Court finds that
the applicant was absolved from making use of the available remedy,
namely the complaint to the Independent Administrative Panel.
- In
conclusion, the Court dismisses the Government's preliminary
objection of non-exhaustion and finds that there has been a violation
of Article 5 § 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that her detention with a view to her expulsion
had been unlawful. She relied on Article 5 § 1 which, in so far
as relevant, reads as follows:
“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 asserted that her detention had not been necessary and that
the Austrian authorities had disregarded her specific situation. She
had had no intention of entering Austria illegally, as she had simply
not been aware that the document issued by the French police
following her declaration of the theft of her passport was
insufficient for the purpose of travelling. It had been clear that
she had no intention of staying in Austria illegally. In fact she had
been stopped by the Hungarian border police when trying to leave
Austria. Given these circumstances, it had not been necessary to take
her into detention with a view to her expulsion, as less intrusive
measures would have sufficed to secure the expulsion procedure. The
applicant also complained that the authorities had not acted
diligently. In particular, the Romanian embassy had issued the
provisional travel document on 13 March 2002, but she had not been
expelled until more than a week later, on 22 March 2002.
- For
their part, the Government asserted that the applicant had been
arrested on 25 February 2002 under section 63(1)(2) of the Aliens Act
1997 for having entered Austrian territory via Italy without a valid
travel document. Her detention with a view to her expulsion had been
lawful, as it was based on section 61(1) of the Act and served the
purpose of securing her deportation. After the provisional travel
document issued by the Romanian consulate had been received by the
District Administrative Authority on 15 March 2002, the applicant had
been expelled via Hungary to Romania on 22 March 2002. Consequently,
the prerequisites for the applicant's detention with a view to her
expulsion had existed throughout the entire period of her detention.
- In
the Government's view the Austrian authorities had acted with the
required diligence. The District Administrative Authority had
requested the Romanian consulate on 26 February 2002 to issue a
travel document for the applicant's return as soon as possible on
account of her detention. The fact that the document in question had
not been issued until 13 March 2002 and had been received by the
District Administrative Authority only on 15 March 2002 was not
imputable to the Austrian authorities. Finally, the authorities had
not remained inactive during the remaining seven days until 22 March
2002, as they had had to prepare and coordinate the applicant's
expulsion with the Hungarian border officials.
- The
Court notes that the Government raised the same preliminary objection
of non-exhaustion in respect of Article 5 § 1 as in respect of
Article 5 § 2. Having regard to the conclusion set out in
paragraph 46 above, it follows that the objection regarding the
applicant's complaint under Article 5 § 1 must also be
dismissed.
- The
applicant's detention falls to be considered under Article 5 § 1 (f)
of the Convention. The Court reiterates that all that is required
under this provision is that “action is being taken with a view
to deportation”. Article 5 § 1 (f) does not demand that
the detention of a person against whom action is being taken with a
view to deportation be reasonably considered necessary, for example
to prevent his committing an offence or fleeing; in this respect
Article 5 § 1 (f) provides a different level of protection from
Article 5 § 1 (c) (see Čonka, cited above, §
38, and Chahal v. the United Kingdom, judgment of 15 November
1996, Reports 1996 V, pp. 1862-63, §§ 112-13).
- The
issue to be determined is whether the applicant's detention was
“lawful”, including whether it complied with “a
procedure prescribed by law”. Here the Convention refers
essentially to national law and lays down the obligation to conform
to the substantive and procedural rules of national law. Compliance
with national law is not, however, sufficient: Article 5 § 1
requires in addition that any deprivation of liberty should be in
keeping with the purpose of protecting the individual from
arbitrariness (see Saadi, cited above, § 67; Čonka,
cited above, § 39; and Chahal, cited above, p. 1864,
§ 118).
- It
follows that while the necessity of detention with a view to
expulsion is not required by the wording of Article 5 § 1 (f) of
the Convention, it may be required under the domestic law to which
that provision refers. This is the position under Austrian law. The
Court notes that the District Administrative Authority based the
decision ordering the applicant's detention on section 61(1) of the
Aliens Act 1997. The said provision required the detention to be
necessary for the issuing of an expulsion order or for carrying out
the deportation of the person concerned.
- Where
the Convention refers directly back to domestic law, as in Article 5,
compliance with such law is an integral part of the obligations of
the Contracting States and the Court is accordingly competent to
satisfy itself of such compliance where relevant (Article 19); the
scope of its task in this connection, however, is subject to limits
inherent in the logic of the European system of protection, since it
is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law (see Lukanov v.
Bulgaria, judgment of 20 March 1997, Reports 1997 II,
p. 543, § 41, and Włoch v. Poland, no. 27785/95, §
110, ECHR 2000-XI). In essence the Court will limit its examination
to whether the interpretation of the legal provisions relied on by
the domestic authorities was arbitrary or unreasonable (ibid., §
116).
- In
the present case the District Administrative Authority, in its
detention order of 25 February 2002, noted only that the applicant
had entered Austria illegally as she had travelled without a valid
passport and visa, and that she lacked the necessary means of
subsistence for a stay in Austria. Referring to these facts the
authority found that there were reasons to believe that the applicant
would abscond and evade the proceedings if released.
- The
Court finds it striking that the authority did not pay any attention
to the applicant's situation, which was fundamentally different from
that of an illegal immigrant or refused asylum seeker. Admittedly,
she had entered Austria without a valid travel document, as her
passport had been stolen in France. However, she had tried to leave
Austria on the same day. It was on that occasion, namely when she
tried to cross the border with Hungary, that she was arrested. Hence,
in her case, there was no indication that she had any intention of
staying illegally in Austria. Nor was there any indication that she
would not have cooperated in the proceedings for her expulsion.
- In
the circumstances of the case, the mere fact that the applicant
entered Austria illegally does not provide a basis for the conclusion
that she would try to evade the proceedings. Neither was the fact of
her lack of subsistence a relevant consideration. The Court
reiterates that detention of an individual is such a serious measure
that – in a context in which the necessity of the detention to
achieve the stated aim is required – it will be arbitrary
unless it is justified as a last resort where other less severe
measures have been considered and found to be insufficient to
safeguard the individual or public interest which might require that
the person concerned be detained (see, mutatis
mutandis, Saadi, cited
above, § 70, with further references).
- Having
regard to the deficiencies in the District Administrative Authority's
reasoning, the Court considers that the applicant's detention
contained an element of arbitrariness. It is therefore unnecessary to
examine separately whether the authorities acted with the required
diligence.
- In
conclusion, the Court finds that there has been a violation of
Article 5 § 1 (f) of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not make any claim for just satisfaction within the
time allowed for that purpose (Rule 60 § 1 of the Rules of
Court). In such circumstances, the Court would usually make no award.
In the present case, however, the Court has found a violation of the
applicant's right to liberty. Having regard to the fundamental
importance of that right, the Court finds it appropriate to award the
applicant 3,000 euros (EUR) as compensation for non-pecuniary damage
(see, mutatis mutandis, Mayzit v. Russia,
no. 63378/00, §§
87-88, 20 January 2005, and Igor Ivanov v. Russia,
no. 34000/02, §§ 48-50, 7 June 2007).
B. Default Interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's preliminary objection
of non-exhaustion of domestic remedies;
- Holds that there has been a violation of Article
5 § 2 of the Convention;
- Holds that there has been a violation of Article
5 § 1 (f) of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 2 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President