CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mars 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } The European Commission of Human Rights sitting in private on 3 March 1986 the following members being present:                 MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL                 Mr.   H. C. KRÜGER Secretary to the Commission   Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 25);   Having regard to the application introduced on 25 March 1985 by M.M. against the United Kingdom and registered on 26 April 1985 under file N° 11517/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a citizen of the United Kingdom, born in 1951 in London.   He is a self-employed leather worker, at present residing in Dublin, Ireland.   He is represented in proceedings before the Commission by Mr.   Alistair Logan, solicitor, Guildford, Surrey.   On 12 May 1975 the applicant was sentenced to 12 years' imprisonment at Birmingham Crown Court for an offence of conspiracy to cause explosions.   He was released from prison on 28 September 1984. Prior to his release he had been interviewed by officers of the Special Branch with a view to determining whether or not a recommendation should be made to the Secretary of State for Home Affairs that he should be excluded from the United Kingdom under the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1984.   The applicant indicated that he had no longer any interest in politics and wanted to lead a normal life after his imprisonment.   He stated that he had no intention in engaging in acts of terrorism on his release.   The applicant was excluded from Great Britain pursuant to Section 4(1) and (2) of the 1984 Act by an Order of the Secretary of State for Home Affairs which was served on him on 26 September 1984. The order stated that the Secretary of State of the Home Office was satisfied that the applicant "is or has been concerned in the commission, preparation or instigation of acts of terrorism designed to influence public opinion or Government policy with respect to affairs in Northern Ireland." On his release he was escorted from Great Britain on a plane bound for Dublin.   The applicant states that he spent the early part of his life in the United Kingdom until his father elected to return to Ireland. Both his parents were born in Ireland and are therefore Irish citizens.   The applicant has not elected to become an Irish citizen, nor has he renounced the citizenship of the United Kingdom.   The applicant has not been excluded from Northern Ireland but he states that he has no wish to go to Northern Ireland since he has no connection with it.   COMPLAINTS AND SUBMISSIONS   Article 6 (Art. 6)   The applicant has not been told the nature of the charges against him which motivate the Exclusion Order.   The only reasons he has been given are cited in the Exclusion Order that he "is or has been concerned in the commission, preparation or instigation of acts of terrorism designed to influence public opinion or Government policy with respect to affairs in Northern Ireland".   He contends that an allegation has been levelled against him of conduct of a criminal nature which is tantamount to a criminal charge within the meaning of Art. 6, para. 1 (Art. 6-1).   He complains that the procedure under the 1984 Act does not provide for an independent and impartial tribunal to consider the charges against him.   In addition, he has been deprived of the rights attached to his United Kingdom citizenship by arbitrary order without appeal and in breach of Art. 6, para. 1 (Art. 6-1).   He further complains that the procedure is in violation of the presumption of innocence under Art. 6, para. 2 (Art. 6-2).   There is an assumption that he is guilty of some criminal act.   The facts are not made available to him to enable him to contest them and the burden lies with him to prove his innocence, contrary to the requirements of this provision.   He also complains   -        that he has not been informed promptly in a language which he understands and in detail the nature and cause of the accusation against him contrary to Art. 6, para. 3, sub-para. a (Art. 6-3-a).   In the absence of any detailed reasons for the suspicions against him makes it impossible for him to defend himself.   -         that he has been denied adequate time and facilities in order to prepare his defence contrary to Art. 6, para. 3, sub-para. b (Art. 6-3-b).   He did not avail of the appeal procedure provided under the 1984 Act since he would have been detained for a further two months until the appeal procedure had terminated.   -        that he did not have access to examine or have examined those witnesses whose evidence motivated the Secretary of State to make an exclusion order, contrary to Art. 6, para. 3, sub-para. d (Art. 6-3-d).   Article 7 (Art. 7)   The applicant points out that he has already served the penalty that was imposed on him for the commission of the offence of conspirary to cause explosions.   If the decision to exclude the applicant was based on this original conviction then it constitutes a further punishment which is imposed retrospectively in breach of this provision.   Article 8 (Art. 8)   The applicant further complains that the decision to exclude him from Great Britain is an interference with his rights under Art. 8 (Art. 8) in that his citizenship entitled him to exercise the rights of his citizenship within the country of his birth.   These rights have now been taken from him in an arbitrary manner without affording him the opportunity of defending himself.   He claims that he has been expelled to a foreign country, albeit one with which he has had a substantial connection.   He is not a citizen of that country.   He accepts that he is not excluded from residing in Northern Ireland but states that he has no real or substantial connection with that country and does not wish to live there.   Finally, he points out that his exclusion from Great Britain prevents him from visiting elderly members of his family who reside there and who supported him during his period of imprisonment.   Article 9 (Art. 9)   The applicant complains of a breach of this provision if he has been excluded for any reasons relating to his beliefs.   Article 13 (Art. 13)   The applicant claims that the appeal procedure provided for in the 1984 Act does not constitute an effective remedy since it is not an independent and impartial body and since he has not been informed of the reasons underlying his exclusion.   Exhaustion of domestic remedies   The applicant submits that the appeal procedure provided for under the 1984 Act is not an effective remedy since he has no right to know the nature of the case against him.   Moreover the appeal procedure is not an impartial procedure as the Government officials involved are aware of the details of the case against him.   Finally, he points out that in order to succeed in an action for judicial review of the exclusion order, he would have to show mala fides on the part of the Secretary of State.   Since he has not been informed of the nature of the accusations againt him it would not be possible to make out a case of mala fides.   THE LAW   1.       The applicant complains of his exclusion from the United Kingdom by order of the Secretary of State pursuant to Section 4(1) and (2) of the Prevention of Terrorism (Temporary Provisions) Act 1984.   He invokes Arts. 6, para. 1 (Art. 6-1), and Arts. 7, 8, 9 and 13 of the Convention (Art. 7, art. 8, art. 9, art. 13).   2.       The Commission recalls, first of all, that the exclusion of a person from one part of a country would normally fall to be examined under Art. 2, para. 1 of Protocol No. 4 (P4-2-1) which guarantees that "Everyone lawfully within the territory of a State shall, within that territory, have the right of liberty of movement and freedom to choose his residence."   In the present case, however, no such issue can arise since the United Kingdom have not ratified this Protocol.   As regards Article 6, para. 1 (Art. 6-1)   3.       The applicant submits that his exclusion involves the determination of a criminal charge within the meaning of Art. 6, para. 1 (Art. 6-1).   4.        This provision provides inter alia that:   "In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ..."   5.        The Commission does not, however, consider that this provision is applicable in the present case.   It considers that the applicant's exclusion from Great Britain is to be seen as a security measure because of his suspected involvement in the "commission, preparation or instigation of acts of terrorism" and not as a criminal penalty. It refers, in this respect, mutatis mutandis, to the decision of the European Court of Human Rights in the Guzzardi case (judgment of 6.11.80, para. 108; see also Dec. No. 7729/76, 17.12.76, D.R. 7 p. 176).   As regards Article 7 (Art. 7)   6.       The applicant complains that the exclusion order could be seen to constitute an additional penalty retroactively imposed in breach of Art. 7, para. 1 of the Convention (Art. 7-1).   This provision states:   "1.      No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."   7.       The Commission recalls its opinion that the applicant's exclusion must be seen as a security measure and not as a penalty.   It accepts that his exclusion may have far-reaching effects on his situation.   However, if the nature and purpose of the measure is not that of a penalty, this is not in itself sufficient to bring it within the scope of Art. 7 (Art. 7).   Accordingly, there is no indication of a breach of this provision.   As regards Article 8 (Art. 8)   8.       The applicant complains firstly that his rights of citizenship have been taken away from him arbitrarily in that he is prevented from living in Great Britain.   He further complains that his exclusion constitutes an unjustified interference with his right to respect for family life since he is unable to visit elderly members of his family who reside there.   9.       Art. 8, para. 1 (Art. 8-1) provides as follows:   "1.   Everyone has the right to respect for his private and family life, his home and his correspondence."   10.      As regards the applicant's first complaint under this head, the Commission considers that this provision does not confer a right to reside in any particular part of a Convention territory.   Nevertheless removal to one part of the country may raise an issue concerning respect for family life under this provision.   11.      However, in the present case, the applicant has been excluded from Great Britain and prefers to live in Ireland where, it appears, his father also resides.   Although he alleges that he is prevented from seeing certain elderly members of his family who supported him during his imprisonment, he has not indicated the extent of family links with these relatives or provided any other substantiation of his complaint in this regard.   12.      In these circumstances the Commission does not consider that the applicant has shown there to be an interference with his right to respect for family life under this provision.   As regards Article 9 (Art. 9)   13.      The applicant further contends that his exclusion may constitute an interference with his freedom of belief contrary to para. 1 of this provision (Art. 9-1) which protects inter alia "freedom of thought, conscience and religion."   14.      It is clear, however, that the applicant has been excluded from Great Britain because of his involvement with a terrorist organisation, albeit that the precise facts or information on which the order is based are not known.   The Commission does not consider that in these circumstances there can be said to be an interference with his rights under this provision.   As regards Art. 13 (Art. 13)   15.      The applicant further complains that he is denied an effective remedy as regards the above complaints.   This provision, however, does not guarantee a remedy in respect of complaints directed against legislative provisions as in this case (see case of James & Others, Eur. Ct. H.R., Judgment of   21.2.86, para. 85;   see also Young, James & Webster v. United Kingdom, Comm. Rep. 14.12.79, para. 177).   16.      The Commission therefore concludes that the application must be rejected as manifestly ill-founded as a whole within the meaning of Art. 27, para. 2 of the Convention (Art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission   (H. C. KRÜGER)                        (C. A. NØRGAARD)