CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 28110/95                       by Ahmet JAHROMI                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 16 April 1998, the following members being present:              MM     M.P. PELLONPÄÄ, President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            Mrs    M. HION            Mr     R. NICOLINI              Mrs    M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 18 July 1995 by Ahmet JAHROMI against the United Kingdom and registered on 3 August 1995 under file No. 28110/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the letter submitted by the respondent Government on      14 October 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a citizen of Iran born in 1967 and at the time of his application was detained in Winson Green prison, Birmingham. He is represented before the Commission by Dr. L. Malik, a solicitor practising in Manchester. The facts as submitted by the parties may be summarised as follows.        In 1984, the applicant fled to Kuwait from Iran to avoid being conscripted to fight in the Iran-Iraq war. He was granted political asylum in Kuwait.        In or about 1985, the applicant entered the United Kingdom as a student and has remained there ever since. During his residence there, the applicant has been an active opponent of the regime in Iran and has been involved in religious activities, being a devout muslim who regards it as part of his religious vocation to convert non-believers.        In or about 1993, the applicant claimed asylum in the United Kingdom. According to the facts as found by the courts in subsequent proceedings, the applicant was given temporary admission to the United Kingdom on the basis that he had made an application for asylum which was still pending.        On 9 March 1995, the applicant was detained, being informed that the Secretary of State had decided to deport him on the basis that for reasons of national security, namely, the likelihood of his involvement in terrorism, his continued presence in the United Kingdom would not be conducive to the public good. He was to be detained pending the decision on his outstanding application for asylum and any representations which he might wish to make.        On 7 April 1995, the applicant applied for habeas corpus challenging the legality of his detention. He also applied for judicial review of the Secretary of State's failure to give adequate reasons or particulars of the allegations against him. He submitted, inter alia, that the Secretary of State had misdirected himself in considering whether his continued presence would not be conducive to the public good rather than the words of the statute which refer to the deportation having to be conducive to the public good (Section 3(5)b of the Immigration Act 1971).        In an affidavit of 11 April 1995, the Secretary of State indicated that the reason for the decision to deport was that he had seen material which lead him to the view that the applicant was involved in the planning of terrorist activity in the United Kingdom and to give further reasons would be damaging to national security and incompatible with the protection of intelligence sources.        On 12 April 1995, Mr Justice Laws dismissed the application for judicial review and habeas corpus.        On 21 June 1995, the Court of Appeal dismissed the applicant's appeal. It found that the difference in wording between the Secretary of State's decision-letter and the provisions of the Act was a matter of semantics and there was no reason to suppose that the Secretary of State had misdirected himself. As regards the lack of reasons given, it found that unless there was evidence that the Secretary of State was not acting in good faith in asserting that the giving of further reasons would be damaging to national security and incompatible with the protection of intelligence sources, the courts must accept that position and make no further enquiry.        On a date unspecified, the applicant's asylum application was refused by the Secretary of State. He decided not to exercise his right of appeal due to the national security grounds. He was removed from the United Kingdom on 3 January 1996 and was granted asylum in Kuwait.     COMPLAINTS        The applicant complains that his detention was not in accordance with law or a lawful arrest or detention within the meaning of Article 5 para. 1 (f) of the Convention since the Secretary of State's decision did not reflect the test of the legislation ie. that the applicant's deportation must be conducive to the public good rather than that his presence was not conducive to the public good.        The applicant submits that he was not given sufficient or adequate reasons for his arrest as required by Article 5 para. 2 of the Convention.        The applicant complains that he had no possibility of obtaining a review of the lawfulness of his detention as required by Article 5 para. 4 of the Convention since the courts will not inquire into the reasons where national security is invoked.        The applicant also invokes Article 5 para. 5 of the Convention in relation to a lack of enforceable right to compensation.        The applicant submits that the arbitrary detention interfered with his right to respect for his private life contrary to Article 8 of the Convention and, insofar as it was attributable to his religious beliefs, contrary to Article 9 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 July 1995 and registered on 3 August 1995.        On 21 May 1997, the Commission decided to communicate the application to the respondent Government.        The Government wrote a letter on 14 October 1997, stating that they did not wish to submit any observations, after an extension of the time-limit fixed for that purpose. The applicant did not make any observations.        On 21 January 1998, the Commission granted the applicant legal aid.     THE LAW   1.    The applicant complains that his detention was not in accordance with the provisions of Article 5 para. 1 (f) (Art. 5-1-f). He also complains that he was not given the reasons for his detention contrary to Article 5 para. 2 (Art. 5-2) of the Convention. The applicant further complains that he did not have a review of his detention which conformed with the requirements of Article 5 para. 4 (Art. 5-4) nor an enforceable right to compensation as required by Article 5 para. 5 (Art. 5-5). The applicant further invokes Articles 8 and 9 (Art. 8, 9) of the Convention alleging that his arbitrary detention discloses violations of his right to respect for private life and his right to manifest his religious beliefs. The relevant provisions of Article 5 (Art. 5) provide as follows:        "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.        2.     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.              ...        4.     Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which the      lawfulness of his detention shall be decided speedily by a court      and his release ordered if the detention is not lawful.        5.     Everyone who has been the victim of arrest or detention in      contravention of the provisions of this Article shall have an      enforceable right to compensation."        The Government state that they do not wish to submit observations in relation to the admissibility of the application.        The applicant relies, inter alia, on the Court's judgment in Chahal (Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1789 at p. 1865, paras. 124-132) which raised similar issues under Article 5 para. 4 (Art. 5-4) and in which the Court unanimously found a violation of that provision.        The Commission has taken cognizance of the submissions of the parties concerning the complaints raised by the applicant. It considers that the complaints raise serious issues of fact and law the determination of which should depend on an examination of the merits. The application cannot therefore be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.        M.F. BUQUICCHIO                             M.P. PELLONPÄÄ         Secretary                                  President    to the First Chamber                       of the First Chamber