ITEMID: 001-76932
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: ANGELOV v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Ivan Angelov, is a Bulgarian national who was born in 1969. He is represented before the Court by Mr Mihail Ekimajiev, a lawyer practising in Plovdiv, Bulgaria. The respondent Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
In February 1997 the applicant arrived in Finland. On 20 August 1998 he was granted a residence permit on the grounds that he lived with a Finnish woman and they had had a child, born on 22 October 1997. The residence permit was valid until 20 August 1999. On an unspecified date the applicant and his partner separated. The applicant and his former partner agreed on access arrangements.
On 4 February 2000 the Directorate of Immigration (ulkomaalaisvirasto, utlänningsverket) rejected the applicant’s application to renew his residence and work permit on the ground that he had repeatedly committed offences. He unsuccessfully appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen) of Vaasa.
On 27 April 2000 the Directorate of Immigration ordered the applicant to be deported as he was staying in Finland without the required residence permit. He was further made subject to a two years prohibition on entry into Finland. He appealed to the Administrative Court, requesting that the decision be rescinded. He stated that he had lived in Finland for four and a half years and that he had a child who had a right to visit his father. In Bulgaria he allegedly had no home or close relatives apart from a brother.
On 8 June 2000 the access arrangements as previously agreed by the parents were confirmed by the Social Welfare Authority (sosiaalivirasto, socialbyrån) of Vaasa, and the following day by the Social Welfare Board (sosiaalilautakunta, socialnämnden). The applicant was granted a right to visit his child every other weekend and during holidays.
On 27 June 2000 the Administrative Court rejected his appeal against the refusal of a residence permit. On 2 November 2000 the Supreme Administrative Court refused leave to appeal.
On 10 November 2000 the Administrative Court rejected his appeal against the deportation order. It referred to Article 8 § 2 of the Convention and reasoned, inter alia, that the deportation of the applicant did not amount to an interference with his right to family life, and did not affect the rights of his child contrary to the Convention on the Rights of the Child. It concluded that when balancing the interests for and against his expulsion, and taking into account the reasons why his residence permit was not renewed, the applicant could be deported to Bulgaria.
He applied for leave to appeal to the Supreme Administrative Court, claiming, inter alia, that he had not committed any recent offences and was capable of supporting himself and his child.
On 5 March 2001 he married a woman who had a permanent residence permit in Finland.
On 8 January 2002 the Supreme Administrative Court refused leave to appeal. In its written submissions to the Supreme Administrative Court the Directorate of Immigration noted that the applicant had been ordered to be deported as he had committed 10 petty offences. After the deportation order he had committed a further three offences, namely driving a motor-vehicle without a licence and was further suspected of misleading an official by using a false identity.
According to the information provided by the Government, which was not denied by the applicant, the applicant re-entered Finland in May 2002. Subsequently he applied twice for a new residence permit on the basis of his new marriage, his son and his family ties. His applications were rejected. In its decision of 17 December 2002 the Directorate of Immigration found that the applicant endangered public order and security and considered that his marriage was a sham. On 17 December 2003 the Administrative Court agreed, noting, furthermore, that the spouses’ divorce was pending. Further, according to that information, the applicant’s prohibition on entry into Finland remains in force until 6 November 2006.
Section 1, subsection 4 (179/1998) of the Aliens Act (ulkomaalaislaki, utlänningslagen; 378/1991, “the Act”), as in force at the relevant time, provided that the application of the Act should not restrict aliens’ rights any more than necessary.
Section 40, subsection 1 (1) of the Act provided that an alien could be deported if he resided in Finland without the required passport or a residence permit. According to subsection 1 (3) an alien could be deported, inter alia, if he or she had committed an offence for which the minimum penalty was more than one year’s imprisonment, or if he or she had repeatedly committed criminal offences.
Section 41 of the Act provided that circumstances such as the length of the alien’s stay in Finland, the existence of a parent-child relationship, family and other ties with Finland, or, in connection with section 40, subsection 1(3) of the Act, the nature of the offence or offences committed, had to be taken into account as a whole when deportation was being considered.
Section 42 (154/1995) of the Act provided that an expulsion may be ordered by the Directorate of Immigration if so requested by the police. The Directorate of Immigration could in certain exceptional circumstances order an expulsion even if the measure had not been requested by the police. The person concerned had to be heard.
Section 43 (154/1995) of the Act provided that an alien could be prohibited from entry into Finland for a maximum of five years or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by the Directorate of Immigration. Such an order could be revoked by the Directorate of Immigration, either entirely or for a limited period, owing to changed circumstances or for an important personal reason.
The Government referred to the following decisions of the Supreme Administrative Court.
KHO 1992 A 59: The applicant had repeatedly committed offences. After being informed of a deportation order, he had married a Finnish citizen. He had a child with another Finnish citizen. He also studied at a university. Considering all the facts of the case, the circumstances as a whole and especially the type of the offence, the applicant’s deportation did not violate his right.
KHO 1992 A 63: The court found no sufficient reasons for deporting the applicant family from Finland on the ground that they had no visa or residence permits, given their long stay in Finland and their other circumstances and ties with the Finnish society.
KHO 1993 A 26: The court did not find grounds for deporting the applicant, given his ties with Finland, including his marriage-like relationship with a Finnish citizen of the same sex.
KHO 1997 A 96: The court did not find sufficient grounds for deporting the family, given the children’s interests and the family’s circumstances as a whole. In that case, the applicant had been granted a residence permit for his studies at a university. The residence permits of the applicant and his family members were not extended because the applicant had not pursued his studies. The Supreme Administrative Court found that the family had lived together in Finland more than six years, during which it had integrated into Finnish society and its way of life. The elder child went to a Finnish school and the younger child was at a kindergarten. The family members spoke Finnish and had relatives in Finland. The parents carried on business in Finland, and therefore their subsistence was secured at least partly.
Decision No. 3103 of 27 November 2002: The court found no sufficient grounds for deporting the applicant, who had immigrated to Finland together with his mother in 1985 at the age of seven. The court stated, inter alia, that the then Finnish husband of the applicant’s mother had adopted him abroad in 1985. He had a child with a Finnish citizen, and they had joint custody of the child. He did not live together with the child or the child’s mother. The applicant had committed a number of offences, including an aggravated narcotics offence. He had also undergone narcotics detoxification. However, the applicant had a permanent residence permit for Finland since 7 October 1993. At the time of the court’s ruling he had lived in Finland for some 17 years. In the overall assessment of the case, the court paid particular attention to his long stay in Finland and to the fact that he had received his school education in Finland. He had integrated into Finnish society and had no ties with his home country.
KHO 2004:124: The court found that the facts speaking against deportation of the applicant had more weight than the two aggravated narcotics offences, consisting of the smuggling of a large amount of hashish, which he had committed in 1996 and 1997. The court took into account, inter alia, the applicant’s family life with a Finnish citizen and their four children, the problems they would have if they had to settle in the applicant’s home country, the length of time taken to process the case and the fact that the applicant had not committed any other offences.


ITEMID: 001-4933
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: A.J.D. v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant is a British national, born in 1966 and detained in H.M. Prison Maidstone, Kent.
He is represented before the Court by Tasneem Osmani, a lawyer practising in at T. Osmani & Co., Wanstead, London.
A.
On 2 October 1996, at the Isleworth Crown Court, the applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition or restriction on the importation of a Class A drug namely 1.6 kilograms of cocaine. The offence was contrary to section 170 (2) of the Customs and Excise Management Act 1979. The applicant was sentenced to 11.5 years' imprisonment. The applicant's co-accused Dickie Ndandaye (“Ndandaye”), also known as Mr Jones, pleaded guilty to the same charge and was sentenced to eight years' imprisonment.
Fact of the case against the applicant
On 29 April 1996 the applicant and Ndandaye arrived at London Heathrow airport on a flight from Rio de Janeiro via Amsterdam. British customs officers were looking out for them having been notified by Dutch customs officers that they had found cocaine in Ndandaye's bag. Ndandaye was stopped, questioned, but allowed to leave the customs hall. He was arrested getting into a taxi outside the terminal. His brown hold-all type bag contained 1.6 kg of cocaine. The applicant was arrested by customs officers after he had collected his own luggage. The applicant was searched and he was interviewed three times.
The first interview took place on 29 April 1996. The applicant was cautioned as follows:
“You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.”
The interview ended after 2 minutes because the applicant requested legal advice. The following day he was interviewed for 25 minutes and after the caution read the following statement:
“I <A.J.D.> wish to make the following statement. I was born on 17 March 1966 and live at 9 Woodham Mews, W12 0HU. I travelled from London to Sao Paulo on a British Airways flight on Tuesday 16 April 1996 through to Wednesday 17 April.
I spent a period of time in Sao Paulo before travelling to Rio de Janeiro. I left Rio de Janeiro on a KLM flight on Sunday 28 April returning via Amsterdam to London on Monday 29 April. I travelled to and from Brazil using my own genuine passport and the personal details contained therein are true and accurate.
I have no knowledge of the importation of crack cocaine by any other person and have not knowingly been involved in such importation myself. My own knowledge on this matter is as a result of information given to me in private consultation with my solicitor. I am not willing to make any further comment at this time.”
The interviewing officers then asked the applicant a number of questions to which he replied “no comment”. The applicant was interviewed for a third time later that day for 15 minutes and gave “no comment” answers.
The prosecution alleged that Ndandaye was a courier and that the applicant was a minder. In this respect it was alleged the offence was a joint enterprise. The prosecution adduced evidence from Miss Deane, a travel agent, that on 16 April 1996 the applicant telephoned her to book a seat on a flight to Brazil and she told him that it would cost £600. Shortly after this the applicant arrived at the shop and gave her £1,200. The applicant stated he wanted to make a booking for a Mr. Jones (Ndandaye). She issued extra return tickets in the name of Mr. Jones. They did not in fact return on this flight but on a KLM flight.
The applicant gave evidence that he had been introduced to a person called Jones (ie Ndandaye) through a friend and that he himself was in the jewellery and car business. The purpose of the visit to Brazil was to buy gold from someone Ndandaye knew who sold it cheaply. The applicant did not pay for Ndandaye's ticket; he was given £700 by Ndandaye for that. Ndandaye told him that he did not need to take cash with him as payment could be made through his London bank account. They went to Sao Paulo but no real deal was struck because the friend was not willing to sell gold except for cash. They went on to Rio de Janeiro and Ndandaye asked the applicant to stay for an extra couple of days. Ndandaye then presented the applicant with a new return ticket to fly back with KLM two days later. The first time that the applicant had seen Ndandaye carrying the brown holdall was in Rio de Janeiro. The scales found in the applicant's possession were for weighing gold and he had borrowed them as his own scales were not of the right type.
The applicant answered all questions asked of him at trial. He said the reason that he had failed to account for certain details in interview was that he was advised by his lawyer to make a statement and then to answer “no comment”. The applicant sought to give evidence as to what advice he had received from his solicitor and the instructions he had given. However the judge ruled that such evidence was inadmissible on the grounds of hearsay and/or relevance.
The trial judge's summing up
The judge reminded the jury of the terms of the caution, the fact that the appellant was interviewed three times, the topics which were raised in interview, the “no comment” answers and the fact that he made a short statement in writing. The judge stated:
“The law is that you may draw inferences as you think proper from a failure to mention facts at the time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such facts at that time cannot on its own prove guilt. But, depending on the circumstances, you may hold that failure against him when deciding if he is guilty, that is take it into account as some additional support in the prosecution case. It is for you to decide whether it is fair to do so.
The <applicant> says that he was advised to make the statement and then to answer “no comment” to all the questions. Advice had come from the legal representative or solicitor who was present with him. You will ask yourselves, members of the jury, why, if the answers which would have been given and have been given in evidence would have pointed to the innocence of the<applicant>, he would have been advised not to answer questions in interview, or why he chose not to. A solicitor's advice not to answer questions does not prevent you from drawing such inferences as I have already directed that you may draw. It is a matter entirely for you.”
On 2 October 1996 the jury convicted the applicant by a unanimous verdict.
The appeal
Originally the applicant applied for leave to appeal against conviction and sentence on personally drafted grounds. His application was refused by a single judge. His renewed application to the full Court of Appeal was adjourned on 28 July 1998. The adjourned hearing took place with the assistance of Counsel on 3 April 1998.
The applicant's first ground of appeal was that as the inference of post interview fabrication by the applicant was in issue, evidence of what was said to the solicitor pre interview was potentially probative in rebuttal of such inference and thus relevant and admissible. The Court of Appeal agreed stating 'the trial judge should not have indicated an unwillingness to allow the evidence to be adduced'. The Court of Appeal therefore agreed in the interests of justice to allow the evidence to be adduced.
The applicant, giving evidence, told the Court of Appeal that the discussion with his solicitor lasted about 2 hours. He told the solicitor the whole story in accordance with what he later said at trial. The solicitor told him that he did not see anything which connected him with the crime. The solicitor advised the applicant to make a basic statement and to offer “no comment”. He did not think the applicant would ever be charged.
In its judgment of 3 April 1998, the Court of Appeal considered it crucial that the solicitor was not called by the applicant to give evidence at the appeal. It found that it was highly unlikely that the solicitor would have given the applicant the advice he claimed. It concluded that although the judge fell into error in excluding the evidence, having heard the evidence it was clear that it would not have materially advanced the defence case at trial. The applicant had not therefore been unduly prejudiced by its exclusion. As regards the applicant's second ground of appeal which concerned the manner in which the trial judge dealt with the “no comment” answers in interview in his summing up, the Court of Appeal accepted that there was some shortcoming in the summing up in that the judge did not direct the jury that they had to be satisfied that the prosecution had established a case to answer before they could draw an adverse inference from the applicant's failure to answer questions at interview. It was not necessary to do so but desirable. It was not enough to flaw the conviction.
On 19 May 1998, the Court of Appeal refused leave to the House of Lords. On 27 July 1998 the House of Lords refused leave to appeal.
B. Relevant domestic law and practice
Section 34 and Section 35 of the Criminal Justice and Public Order Act 1994 provide so far as is relevant:
“34. (1) Where in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; ...
being a fact which in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, sub-section (2) applies.
(2) Where this sub-section applies -
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of offence charged,
may draw inferences from the failure as appear proper”.