CCPR/C/38/D/291/1988

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K. Communication No. 2093/1988, Mario J. Torres vy. Finland (views

adopted_on 2 April 1990, at the thirty-eighth session)

Subnitted by: Mario Inéz Torres (represented by counsel)

Alleged victims The author

State party concerned: Finland

Date of communication: 17 February 1988

Rate of decision on admissibility: 30 March 1989

» @stablished under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 2 April 1990,

ite consideration of commuaication No. 291/1988, submitted to

the Committee by Mr. Mario Inés Torres under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the

author of the communication and by the State party,

Adopta the following:

Views under article 5. paragraph 4. of the Optional Protocol

1. The author of the communication, dated 17 February 1988, is Mario I. Torres, a

Spanish citisen born in 1954, who claime to be the victim of a violation by Finland

of article 7, 9, paragraph 4, and 14 of the International Covenant on Civil and

Political Rights. He is cepreseuted by counsel.

Zhe background

2.1 A former political activist, Mr. Torres resided at Tuulouse, France, from 1957

to 1979. From 1974 to 1977, he served a pr‘son sentence for acts of sabotege

committed against Spanish property in France. In 1979, he returned to Spain.

2.2 On 19 March 1984, he was arrested by the special services of the Spanish

Guardia Civil, on suspicion of being a member of a terrorist group, and was

detained for 10 days.

2.3 From 1985 to 1987, the author resided in France.

2.4 On 26 August 1987, the author travelled to Finland and requeeted asylum. On

8 October 1987, however, he was detained by the security police pursuant to the

Aliens Act. Since that date and until his extr.idition to Spain in March 1988, the

detention order was renewed on seven occasions for seven days at a time by ¢acision

of the Ministry of the Interior. On 3 December 1987, the Minister of the interior

rejected the author's request for asylum and his request for a resident's permit.

On 9 December 1987, the author appealed to the Supreme Court, requesting his

release from detention, and on the same day filed a second request for asylun,

which was refused by the Ministry of the Interior on 27 January 1968.

2.5 On 16 December 1987, the Government of Spain requested the author's

extradition through the International Criminal Police Commission (interpol). By

@ecision of the same day, the author's detention was prolonged pursuant to tho

Finnish law on the Extradition of Criminals. On 23 December 1987, the City Court

Of Helsinki decided to prolong detention on the same grounds. On 4 January 1988,

the Ministry of Justice decreed that, since extradition had not yet been officially

requested by Spain, the author could no longer be detained pursuant to the Law on

the Extradition of Criminals. On 5 January 1988, an order concerning the

prolongation of his detention, pursuant to the Aliens Act, was issued by the police.

2.6 On 8 January 1988, the Embassy of Spain et Helsinki formally requested the

extredition of Mr. Torres as a suspect in a robbery committed at Barcelona on

2 December 1984. By a note verbale dated 3 February 1988, the request was extended

to cover his alleged membership in an armed group. The City Court of Helsinki

thereupon decided, on 11 January 1988, that Mr. Torres could be detained pursuant

to the Law on the Extradition of Criminals. On 4 March 1988, the Supreme

Administrative Court of Finland considered that there had been justifiable grounds

for lawfully detaining the author pursuant to the Aliens Act. On 10 March 1988,

the Minister of Justice approved the extradition request and the author was.

extradited to Spain on 28 March 1988. Until the author's extradition, the city

Court of Helsinki reviewed the detention at two-week intervals.

2.7 The detention of Mr. Turres from 8 October to 15 December 1987 and from 5 to

10 January 1988 was based on the Aliens Act and from 16 Decembur 1987 to

4 January 1988 and from 11 January to 28 March 1988 on the law on the Extradition

of Criminals; during the entire period, Mr. Torres was detained at the Helsinki

District Prison.

2.8 On 14 October 1988, the Jusgado Central de Instrucciun convicted the author of

armed robbery and sentenced him to seven years' imprisonment. He is currently

appealing his conviction and remains on bail.

Complaint

3. The author clains that the extradition order of 10 March 1988 was contrary to

article 7 of the Covenant, because the Finnish authorities had been provided with

information, on the basis of which it could be feared that the author would be

s ibjected to torture if he were to return to Spain. With regard to his complaint

under article 9, paragraph 4, of the Covenant, the author argues that during his

detention pursuant to the Aliens Act, he was not provided an opportunity to have

recourse to a judicial body, and that the proceedings before the Supreme

Administrative Court were unreasonably prolonged.

State party's comments and observations

4.1 The State party submits that article 7 of the Covenant does not cover the

issue of extradition, and adds that the decision on the extradition of Mr. Torres

was taken in conformity with the international obligations of Finland:

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"The request for extradition by Spain concerned acmed robbery as well ae

membership in an armed group. The extradition was considered possible only on

the basis of the former but not of the latter. The Finnish extradition order

specifically provided that the Spanish authorities do not prosecute Mr. Torres

for crimes other than the one for which extradition was granted (armed

robbery). The rights guaranteed under the Covenant have thus not been

affected by the extradition. Even if an extradition were treated as potential

complicity to a violation of article 7, the State party argues that Kz. Torres

did not submit the necessary evidence to indicate that he would, after his

‘ extradition, be subjected to treatment in violation of article 7. °*

4.2 The State party further elaborates on the grounds for the author's detention:

the firat decision, dated 7 October 1987, was based on reasons relating to a

presumed risk of crime (Aliens Act, section 23, subsections 1 and 2). The second

decision, dated 3 December 1987, was justified by the preparations for his

extradition to Spain ind a presumed risx of crime and evasion (Aliens Act,

section 23, subsections 1 and 2). The third decision, dated 5 January 1988, was

predicated, inter alia, on a presumed risk of crime (Aliens Act, section 23,

subsections 1 and 2).

4.3 Under section 33 of the Aliens Act, Mr. Torres could hav- appealed the

extension of his detention to the Supreme Administrative Court within 14 days of

the decision. He did appeal the decision made by the Ministry of the Interior on

26 November 1987 on the extension of detention, and his appeal was dismissed by the

Supreme Administrative Court on 4 March 1988. Under section 32 of the Aliens Act

("Seeking annulment of a decision rendered by the police or a passpor*. control

officer"), Mr. Torres had the right to submit the decisions on detention

(concerning the first seven days) taken by the police on 7 October 1987,

3 December 1987 and 5 January 1988, respectively, to review by the Ministry of the

Interior. He did seek annulment of the two latter decisions of the police. In its

decision of 23 February 1988, the Ministry of the Interior considered that there

had been reasonable grounds for detention.

4.4 ‘he State party further submits that detention under the Extradition Act must,

pursuant to section 19, be referred “without delay" to the City Court which in turn

shall, according to section 20, decide “without delay" whethsr detention should be

continued. The detention order vf 16 December 1987 was prolonged by “iecision of

23 December 1987 of the Heleinki City Court. According to section ii2 of the

Extradition Act, the decision of the City Court can be appealed to the Supreme

Court. There is no time-limit for an aprp.3al. The State party notes that the files

do not indicate that Mr. Torres ever filed this appeal and submits that this

domestic remedy was thus not exhausted and is, in principle, stili available *o him.

4.5 Finally, the State party indicates that a goveri.nent bill with a view to

amending the Aliens Act will be submitted to Parliament shortly so as to guarantee

the right to have detention order reviewed by a court without delay.

Iaguesa to he considered by the Committee

5.1 On the basis of the information before it, the Committee concluded that all

conditions for declaring the communication admissible were met, including the

requirement of exhaustion of domestic remedies under article 5, paragraph 2, of the

Optional Protocol.

5.2 In its decision on admissibility, the Committee reserved consideration of the

author's allegations under article 7 for the merits in order to be able to

ascertain whether the Finnieh Government, when deciding upon Mr. Torres’

extradition, was in possession of such information as to indicate that he might

upon extradition be subjected to torture or to other cruel, inhuman or degrading

treatment.

5.3 The Committee further recalled the* according to the undontested facts,

Mr. Torres was unable to challenge hia detention under the \liens Act during the

first week of detention on several occasions. The Committee noted that the Aliens

Act did not contain a right of complaint for detention up to seven days; therefore,

it had to consider whether the provisions of the Aliens Act, which were concretely

applied to the author, conformed with the requirements of article 9, paragraph 4,

of the Covenant. The Committee observed that the State party had not furnished any

information on the domestic remedies which the author could have pursued with

respect to this particular complaint; it thus concluded that in respect of this

complaint there were no domestic remedies available to Mr. Torres.

5.4 The Committee noted the State party's statement that although the author had,

on 9 December 1987, filed an appeal to the Supreme Administrative Court against the

decision by the Ministry of the Interior of 26 November 1987, the Court did not

decide until nearly three months later. In the light of the circumstances, the

Committee found that Mr. Torres’ complaint relating to the delay in having his

detention adjudicated upon could raise issues under article 9, paragraph 4, of the

Covenant.

5.5 On the basis of the written information before it, the Committee considered

that there was no evidence in substantiation of the author's claim that he was a

victim of any of the rights set forth in article 14 of the Covenant.

5.6 On 30 March 19869, the Human Rights Committee declared the communication

admissible in so far as it related to complaints under articles 7 and 9,

paragraph 4, of the Covenant.

6. The Committee notes the author's allegation that Finland is in violation of

article 7 of the Covenant for extraditing him to a country where there were reasons

to believe that he might be subjected to torture. The Committee finds, however,

that the author has not sufficiently substantiated hia fears that he would be

subjected to torture in Spain.

7.1 Three separate questions arise with respect to article 9, paragraph 4, of the

Covenant: (a) whether the fact that the author was precluded, under the Aliens

Act, from challenging his detention for the periods of 8 to 15 October 1987, 3 to

10 December 1987 and 5 to 10 January 1988 before a court when he was being detained

under orders of the police, constitutes a breach of this provision; (b) whether

once he was by law entitled to challenge his detention under the Aliens Act,

alleged delays in the handing down of the judgement constitute a breach; and

(c) whether the application of the Extradition Act to the author entails any

violation of this provision.

7.2 With respect to the first question, the Committee has taken note of the State

party's content..on that the author could have appealed the detention orders of

7 October, 3 December 1987 and 5 January 1988 pursuant to section 32 of the Aliens

Act to the Ministry of the interior. In the Committee's opinion, this possibility,

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while providing for some measure of protection and review of the legality of

Getention, doea not satisfy the requirements of article 9, paragraph 4, which

envisages that the legality of detention will be determined by a court so ag to

ensure a higher degree of objectivity and independence in such control. The

Committee further notes that while the author was detained under orders of the

police, he could not have the lawfulness of his detention reviewed by a court.

Review before a court of law was possible only when, after seven days, the

detention was confirmed by order of the Minister. As no challenge could have been

made until the second week of detention, the author's detention from 8 to

15 ‘Gctober 1987, from 3 to 10 December 1987 and from 5 to 10 January 1988 violated

the requirement of article 9, paragraph 4, of the Covenant that a detained person

be able "to take proceedings before a court in order that that court may decide

without delay on the lawfulness of his detention and order his release if the

detention is not lawful" (emphasis added).

7.3 With respect to the second question, the Committee emphasises that, as a.

matter of principle, the adjudication of a case by any court of law should take

place as expeditiously as possible. This does not mean, however, that precise

deadlines for the handing down of judgements may be set which, if not observed,

would necessarily justify the conclusion that a decision was not reached "without

delay". Rather, the question cf whether a decision was reached without delay must

be assessed on a case by case basis. The Committee notes that almost three months

passed between the filing of the author's appeal, vacar the Aliens Act, againet the

decision of the Ministry of the Interior and the decision of the Supreme

Administrative Court. This period is in principle too extended, but as the

Committee does not know the reasons for the judgment being issued only on

4 March 1988, it makes no finding under article 9, paragraph 4, of the Covenant.

7.4 With respect to the third question, the Committee notes that the Helsinki City

Court reviewed the author's detention under the Extradition Act at two-week

intervals. The Committee finds that such reviews satisfy the requirements of

article 9, paragraph 4, of the Covenant.

8. The Human Rights Committes, acting under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political Rights, is

of the view that the facts of tho communication disclose a violation of article 9,

paragraph 4, of the International Covenant on Civil and Political Rights, because

the author was unable to challenge his detention from 8 to 15 October 1987, from

3 to 10 December 1987 and from 5 to 10 January 1988 before a court.

9. In accordance with the provisions of article 2 of the Covenant, the State

party is under an obligation to remedy the violations suffered by the author and to

ensure that similar violations do not occur in the future. The Committee takes

this opportunity to indicate that it would welcome infcrmation on any relevant

measures taken by the State party in respect of the Commitcee's views. In this

contezt, the Committee welcomes the State party's expressed intention to amend its

legislation so as to guarantee the right to have detention based on the Aliens Act

reviewed without delay by a court.

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