Lexploria

The European Commission of Human Rights sitting in private on

5 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

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 January 1984 by

A.H. against the Netherlands and registered on 3 February 1984

under file No. 10798/84;

Having regard to:

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 4 March 1985 to bring the

application to the notice of the respondent Government and invite them

to submit written observationson its admissibility and merits;

- the observations submitted by the respondent Government on

13 May 1985 and the observations in reply submitted by the applicant

on 11 July 1985;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as they have been submitted by the applicant,

may be summarised as follows.

The applicant, who claims to be stateless, was born in 1935 at Bogar

in Algeria. His present residence is unknown.

In the proceedings before the Commission, the applicant is represented

by Mr. L.C. Baars, a lawyer practising in Schiedam, the Netherlands.

It appears that the applicant took up residence in France in 1952, but

that he had to leave this country during the Algerian rebellion in

1958. After having first moved to the Federal Republic of Germany, he

returned to Algeria after that country had become independent.

After the political events in Algeria in 1965, the applicant went to

Portugal as a stowaway on board a ship to Lisbon. Apparently he had

no travel documents and did not report himself to the authorities.

The applicant worked at the Lisbon docks, and also as a sailor on a

Greek vessel, until 1969 when he left his ship in Venezuela to try to

obtain travel documents there.

On 17 February 1970, the applicant, after having spent about four

months in detention, was given an alien's passport and was expelled to

Madrid.

It appears that the applicant then signed on a ship registered in

Uruguay and sailed to Trinidad, where he spent some time in hospital.

During that period his Venezuelan alien's passport was renewed until

17 February 1976.

In February 1971 the applicant returned to Spain by airplane and,

afterwards, worked as a sailor on board various ships.

In July 1973 the applicant was paid off at Antwerp and went to

Rotterdam from there. He was, however, arrested shortly afterwards

and expelled to Belgium. From there, he returned to the Netherlands,

but was again arrested and this time expelled to Venezuela. He

arrived in Venezuela on or about 18 October 1974, but was sent back to

the Netherlands almost immediately.

In 1975, the applicant introduced a request to be admitted to the

Netherlands as a refugee, but his request was rejected on 2 July 1975

by the Deputy Minister of Justice since the Netherlands could not be

considered as the first country receiving the applicant and because

the applicant could not be considered to be a refugee in the sense of

the Geneva Convention relating to the Status of Refugees, nor were any

cogent reasons of a humanitarian nature found to exist on the basis of

which a residence permit could be granted.

In the following years, the applicant appears to have been expelled

from the Netherlands to Belgium well over twenty times. Each time,

however, he claims that he was either arrested by the Belgian

authorities and returned to the Netherlands or he decided to return to

the Netherlands on his own accord. The Government, however, dispute

that the applicant was ever returned to the Netherlands by the Belgian

authorities but submit that the applicant always went back of his own

free will.

Having been found in the Netherlands without identity papers the

applicant was fined on several occasions by the District Court judge

(Kantonrechter) of Rotterdam in 1981.

As a result of this, the Deputy Minister of Justice decided on 9 June

1982 to declare the applicant an undesired alien (ongewenst

vreemdeling).

The applicant did not appeal against this decision.

On the basis of the said declaration the applicant was then sentenced

by the Police Magistrate (Politierechter) to a prison sentence of four

months. After having served the sentence he was, again, expelled to

Belgium. It appears that in February 1983 he was sent back to the

Netherlands by the Belgian authorities, after having been detained for

half a month in Belgium.

On 13 April 1983 the applicant requested the Deputy Minister of

Justice to withdraw the declaration which had rendered him an

undesired alien.

However, on 8 August 1983, this request was rejected. According to the

Deputy Minister, the said declaration was given for an indefinite

period and when considering a request for withdrawal a balance had to

be struck between the general interest and the personal interest of

the alien concerned. The fact that the applicant was a stateless

person could not be decisive in this respect. The Deputy Minister, in

addition, referred to the restrictive Dutch immigration policy,

allowing for admission of aliens only if their presence served a real

Dutch interest or because of cogent reasons of a humanitarian nature,

but found that the applicant's case did not fall into either of these

categories.

On 7 September 1983, the applicant introduced a request for revision

of this decision, but was informed, by letter of 6 October 1983 from

the Deputy Minister of Justice, that his request could not be granted.

The letter stated that there could be no revision of a decision not to

withdraw a declaration of undesired alien, since such a decision did

not constitute a decree (beschikking).

The applicant appealed against this decision to the Council of State's

Division for Jurisdiction (Afdeling rechtspraak van de Raad van State)

on 3 November 1983 on the basis of both the Aliens Act and the

relevant administrative law.

After having again been ordered to leave the Netherlands, the

applicant initiated summary proceedings (kort geding) before the

President of the Regional Court (Arrondissementsrechtbank) of

Rotterdam, claiming that his proposed expulsion would be unlawful.

However, the President of the Regional Court dismissed the claim on 22

November 1983. The President noted, in regard to the applicant's

alleged statelessness, that the applicant had claimed, in an interview

with an official of the Ministry of Justice in 1975, to have Algerian

nationality but that he had since failed to obtain either French or

Algerian nationality papers.

In addition, the President considered that expulsion did not need to

be suspended until the applicant's admission to another country was

certain or the administrative proceedings had been concluded in the

Netherlands, as the positive outcome for the applicant of these

proceedings was far from certain. The President did not accept the

applicant's claim that he could not reasonably be held responsible for

not appealing against the decision to declare him an undesired alien,

as the Council of State's case-law indicated that failure to appeal in

time was not easily excusable. With regard to the applicant's

complaints under Articles 3 and 5 (Art. 3, (Art. 5) of the Convention,

the President found that the applicant himself had each time created

the risk of being expelled by returning illegally to the Netherlands

after every expulsion. Moreover, the President found that there were

no cogent reasons of a humanitarian nature which prevented the

applicant's expulsion or which would require that a residence permit

for the Netherlands be granted. Finally, the personal interest which

the applicant had in advocating his interests in the administrative

proceedings that he initiated could not, in view of the negligible

chance of these proceedings being successful, override the general

interest in expelling aliens who were not eligible for residence in

the Netherlands.

The applicant appealed against this decision on 5 December 1983 to the

Court of Appeal (Gerechtshof) of The Hague.

Meanwhile, having again been arrested, the applicant was sentenced by

the Police Magistrate to five months imprisonment on 29 August 1983.

Subsequently, he appealed against this decision to the Court of Appeal

(Gerechtshof) of The Hague.

The Court of Appeal quashed the judgment of the Police Magistrate on

1 May 1984, insofar as the applicant had received a prison sentence.

The Court held that no punishment or other measures should be applied

to the applicant as his being declared an undesired alien resulted

from lack of identity papers, for which the applicant could only be

blamed to a very limited extent.

On 31 June 1984, the applicant was given a "laissez-passer", issued by

the Ministry of Foreign Affairs, only valid for leaving the

Netherlands and for a limited period of three months, and was given

the possibility to be sent to either Algeria or Tunisia.

Upon his request, the applicant was sent to Morocco on 10 February

1984 but had to leave that country again within two hours, in the

direction of Spain. It seems that the applicant was permitted to

remain in Spain until the expiry date of his "laissez-passer"

(30 April 1984).

On 23 July 1984 the President of the Council of State's Division for

Jurisdiction, in two separate decisions, rejected the applicant's

complaints of 3 November 1983 as being inadmissible. The applicant

appealed against these decisions on 7 August 1984.

The applicant's appeal of 5 December 1983 was rejected by the Court of

Appeal of The Hague on 26 October 1984.

With regard to the applicant's claim to be a stateless person, the

Court considered that the applicant had failed to demonstrate that he

had attempted either to obtain an Algerian passport or to have his

citizenship confirmed. However, the Algerian authorities had never

indicated that they did not consider the applicant to be an Algerian

citizen. The Court found that it had not been sufficiently

demonstrated that the applicant was a stateless person.

The court further confirmed the decision of the President of the

Regional Court of Rotterdam of 22 November 1983.

COMPLAINTS

The applicant complains that the Netherlands authorities have failed

to recognise the consequences of the fact that he is a stateless

person. He considers that his repeated expulsions from the

Netherlands to countries where it is known that he will not be

admitted amount to inhuman treatment contrary to Article 3

(Art. 3 of the Convention.

The applicant, in addition, complains that he was detained in

police-cells for long periods of time, although such cells are only

suited for short-term occupation. He also invokes Article 3

(Art. 3) of the Convention in this respect.

The applicant further claims that since his position as a stateless

person has not been properly established, his repeated detentions are

contrary to Article 5 (Art. 5) of the Convention.

Proceedings before the Commission

The application was introduced on 30 January 1984 and registered

on 3 February 1984.

On 4 March 1985 the Commission decided, in accordance with Rule 42,

para. 2, sub-para. b of its Rules of Procedure to bring the

application to the notice of the respondent Government and to request

them to submit written observations on its admissibility and merits.

The Government's observations were submitted on 13 May 1985, the

applicant's observations in reply on 11 July 1985.

SUBMISSIONS OF THE PARTIES

A) The Government

a) Exhaustion of domestic remedies

The Netherlands Government take the view that the applicant has

exhausted all legal remedies in the Netherlands within the meaning of

Article 26 (Art. 26) of the Convention, since he was not permitted to

remain in the Netherlands until the result of the appeal lodged

against the judgment of the president of the Regional Court of

Rotterdam rejecting his claim in summary proceedings became known.

b) The facts

First, with regard to the alleged statelessness of the applicant, the

Netherlands authorities assume that he has Algerian nationality. At

the time of his birth, Algeria was not an independent state, but a

French colony. In the Evian Agreement of 19 March 1962 concerning the

independence of Algeria, decisions on matters of nationality were left

to Algerian legislation, on the grounds of which (Law. No. 70-86 of

15 December 1970) it is clear that the applicant must be considered to

be of Algerian nationality by descent (section 6). Such nationality

cannot be lost through long periods of absence from Algeria,

nationality can only be declared forfeited on such grounds where it

has been adopted after birth by someone not originally Algerian.

Second, it should be noted that the request for asylum submitted by

the applicant in 1975 was only made after he had been arrested for the

fourth time for being illegally resident in the Netherlands.

Furthermore, his request for asylum was rejected not only because the

Netherlands could not be considered the country to which the applicant

first appealed, but also because he could not be regarded as a refugee

within the meaning of the Geneva Convention relating to the Status of

Refugees of 28 July 1951. Nor were there any compelling reasons of a

humanitarian nature for granting him asylum. In addition, the

applicant did not ask for the decision rejecting his asylum request to

be reviewed.

Finally, the Netherlands Government are not aware of any information

to the effect that the applicant was compelled to return to the

Netherlands by the Belgian authorities. If this had happened,

article 9 of the Agreement between the Kingdom of the Netherlands, the

Kingdom of Belgium and the Grand Duchy of Luxembourg of 11 April 1960

concerning the removal of border controls on persons to the outer

boundaries of the Benelux territory, would have had to be applied. It

has never been demonstrated that the applicant was handed over by the

Belgian authorities and it must therefore be concluded that he always

returned to the Netherlands of his own free will.

c) The Law

The applicant states that the Netherlands authorities completely

ignored the fact that he is a stateless person and that his repeated

deportation from the Netherlands to countries where it was known that

he would not be admitted constitutes inhuman treatment within the

meaning of Article 3 (Art. 3) of the Convention. He also states that

the fact that he was punished purely because he did not have any

travel documents should be regarded as inhuman and degrading.

With regard to the alleged statelessness of the applicant, reference

is made to the reasons explained under b) above for the Netherlands

authorities' doubts on this point. Even if it were to be accepted

that he is a stateless person, this would make no difference from the

point of view of Netherlands policy on the admission of aliens and its

obligations in respect thereof under international law.

With regard to the deportation of the applicant from the Netherlands

the following should be noted. The Netherlands Government conduct a

restrictive admission policy with regard to aliens. This means that

aliens can only be admitted if they are eligible for admission on the

grounds of the Netherlands' international obligations or if there are

compelling humanitarian reasons for their admission or if the

interests of the Netherlands would be significantly served by their

admission.

The applicant is not entitled to a Netherlands residence permit on any

of the above grounds. In accordance with the Commission's established

case law an alien may not claim the right to residence in another

country under the provisions of the Convention. In respect of the

applicant's assertion that his repeated deportation from the

Netherlands constitutes inhuman treatment within the meaning of

Article 3 (Art. 3) of the Convention the Netherlands Government would

observe that the Commission defined the term "inhuman treatment" in

the Greek case (Yearbook XII, p. 186) as "such treatment as

deliberately causes severe suffering, mental or physical, which in the

particular situation is unjustifiable".

The Netherlands Government are of the opinion that it cannot

reasonably be assumed that the deportation of the applicant from the

Netherlands constituted such treatment. The deportation of aliens who

are not permitted to reside in a particular country is a logical

consequence of an aliens admission policy and of the rejection of an

application for a residence permit.

Aliens who wish to be granted permission to reside in a country and

who must therefore meet the relevant criteria, cannot reasonably

describe the withholding of that permission because they do not meet

the relevant criteria, and, where appropriate, their consequent

deportation, as treatment deliberately designed to cause suffering and

therefore in conflict with Article 3 (Art. 3) of the Convention.

In so far as the applicant experienced his repeated deportation from

the Netherlands as suffering, he must be considered to have himself

been responsible for that suffering, since he continued to return to

the Netherlands after each deportation in contravention of the

provisions of the Netherlands Aliens Act, despite knowing that he was

not permitted to reside in the Netherlands and that he had indeed been

prohibited from entering the country after being declared persona non

grata.

It should also be pointed out in this connection that the Netherlands

authorities have already offered the applicant the opportunity of

travelling to his country of origin or another country of his choice

using a Netherlands laissez-passer. Furthermore, it is not clear why

the applicant, who according to his own statements was born on

12 July 1935 in Bogar, Algeria, could not obtain identity papers

himself from the Algerian authorities, if necessary after his Algerian

nationality had been confirmed under the terms of the relevant

legislation.

With regard to the second element of the alleged violation of

Article 3 (Art. 3), namely that punishment on account of not being in

the possession of travel documents should be regarded as inhuman and

degrading, the Netherlands Government would make reference to the

Court's judgment in the Tyrer case (Eur. Court HR series A, No. 25,

p. 15) which includes the following statement: "It would be absurd to

hold that judicial punishment generally, by reason of its usual and

perhaps almost inevitable element of humiliation, is "degrading"

within the meaning of Article 3 (Art. 3). Some further criterion must

be read into the text. Indeed, Article 3 (Art. 3), by expressly

prohibiting "inhuman" and "degrading" punishment, implies that there

is a distinction between such punishment and punishment in general. In

the Court's view, in order for a punishment to be "degrading" and in

breach of Article 3 (Art. 3), the humiliation or debasement involved

must attain a particular level and must in any event be other than

that usual element of humiliation referred to in the preceding

sub-para. The assessment is, in the nature of things, relative: it

depends on all the circumstances of the case and, in particular, on

the nature and context of the punishment itself and in the manner and

method of its execution."

In the case of Campbell and Cosans (Eur. Court HR Series A, No. 48,

pp. 12-13) the Court concludes the following from the precedent of the

Tyrer case: "Nevertheless, it follows from that judgment that

"treatment" itself will not be "degrading" unless the person has

undergone - either in the eyes of others or in his own eyes -

humiliation or debasement attaining a minimum element of severity."

Under the provisions of the Netherlands Aliens Decree of 19 September

1966 (Netherlands Bulletin of Acts, Orders and Decrees 387) aliens are

obliged to carry with them documents showing their identity and to

show these upon request to any official with responsibility for border

control or the supervision of aliens. Under section 44 of the

Netherlands Aliens Act of 13 January 1965 (Netherlands Bulletin of

Acts, Orders and Decrees 40) failure to comply with these requirements

is an offence liable to a term of imprisonment not exceeding 6 months

or a fine not exceeding one thousand guilders.

Furthermore, under section 197 of the Netherlands Criminal Code it is

prohibited for aliens who know or have good reason to suspect that

they have been declared personae non gratae under the terms of

statutory provisions to reside in the Netherlands. Infringement of

this prohibition is liable to a prison sentence not exceeding

6 months. When he was handed the decree declaring him persona non

grata, the applicant was also given a leaflet explaining what that

meant in Arabic.

With regard to the punishment of the applicant, the Netherlands

Government would point out that this was based on Netherlands law and

that any element of debasement which it may have involved could in no

way be described as being of the severity referred to by the Court in

the Campbell and Cosans case.

The Netherlands Government therefore believe that this part of the

complaint must be regarded as manifestly ill-founded within the

meaning of Article 27, para. 2 (Art. 27-2) of the Convention.

Article 5 (Art. 5)

With regard to the assertions in the complaint concerning the alleged

violation of Article 5 (Art. 5) of the Convention, the Netherlands

Government would make the following observations.

The Netherlands Government understand that the applicant believes that

his repeated detention was in conflict with the provisions of

Article 5 (Art. 5) of the Convention because his statelessness had not

been properly established, and are of the opinion that whether or not

his statelessness was properly established has no bearing on the

applicability of the provisions of Article 5 (Art. 5) of the

Convention since statelessness is not relevant to that article.

Insofar as the applicant was deprived of his liberty in the

Netherlands, this always occurred in accordance with one of the

provisions of Article 5, para. 1 (Art. 5-1) of the Convention.

To be more specific, on each occasion that the applicant was detained,

the action was either in accordance with Article 5, para. 1(a)

(Art. 5-1-a) i.e. after being convicted of contravening article 197 of

the Netherlands Criminal Code, or in accordance with Article 5,

para. 1(f) (Art. 5-1-f) i.e. on account of his having been remanded in

custody under section 26 of the Netherlands Aliens Act with a view to

deportation.

Furthermore, each time that the applicant was placed in detention, the

procedural regulations laid down in Article 5, paras. 2, 3 and 4

(Art. 5-2, (Art. 5-3, (Art. 5-4) of the Convention were followed where

relevant and it can therefore be assumed that he was always deprived

of his liberty in accordance with the provisions of Article 5 (Art. 5)

of the Convention.

The Netherlands Government are therefore of the opinion that this part

of the complaint must also be regarded as manifestly ill-founded

within the meaning of Article 27, para. 2 (Art. 27-2) of the Convention.

B) The applicant

The applicant submits as follows with regard to the Government's claim

that he has Algerian nationality.

The applicant and several governments, including the Netherlands

Government, have repeatedly enquired after his nationality with the

Algerian authorities but the latter have failed to react over the past

twenty years.

Moreover, when the applicant entered the Netherlands for the first

time, he was in possession of a valid alien's passport which was,

however, withdrawn by the Venezuelan authorities after the applicant

had been deported to that country.

Furthermore, the applicant observes that although he was expelled from

the Netherlands 25 times, he was never directly sent to Algeria.

The applicant notes that both the Netherlands and Algeria are parties

to the Convention Relating to the Status of Stateless Persons, and

would therefore have been expected to establish the alleged

nationality of an individual.

The applicant submits that he has never obstructed any attempts to

establish his nationality.

With regard to the Government's claim that he always returned to the

Netherlands of his own accord and was never handed over by the Belgian

authorities, the applicant observes that the Netherlands authorities

themselves never handed him over to Belgium on the basis of the

Benelux agreement referred to.

The applicant submits that he did not have the intention to settle in

the Netherlands at the time but that he was unable to continue his

work as a sailor because his alien's passport had been withdrawn by

the Venezuelan authorities. Had he been provided with a passport for

stateless persons or an alien's passport, he would have left the

Netherlands. However he was forced to try and settle down in the

Netherlands, having been declared an undesired alien in the Federal

Republic of Germany, France and Belgium. For this reason, it was only

after some time that he invoked his status as a refugee.

THE LAW

1. The applicant has complained that his repeated expulsions from

the Netherlands to countries where it is known that he will not be

admitted constituted inhuman treatment contrary to Article 3 (Art. 3)

of the Convention which reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that, according to its constant case-law, no

right of an alien to reside in a particular country, or not to be

expelled from a particular country, is as such guaranteed by the

Convention (cf. eg Dec. No. 7729/76, 17.12.76, DR 7, p. 164 ff).

However, the Commission has also held that the repeated expulsion of

an individual, whose identity was impossible to establish, to a

country where his admission is not guaranteed, may raise an issue

under Article 3 (Art. 3) of the Convention (cf. Giama v. Belgium,

Comm. Report 17.7.80). Such an issue may arise, a fortiori, if an

alien is over a long period of time deported repeatedly from one

country to another without any country taking measures to regularise

his situation.

The Commission observes, however, that the applicant after having been

expelled to Belgium from the Netherlands in most, if not all cases,

appears to have returned to the latter country of his own free will.

The applicant has not demonstrated that he was ever expelled from

Belgium to the Netherlands.

Furthermore, the Commission notes that the applicant has not submitted

any evidence that he ever attempted to have his alleged Algerian

nationality recognised by the Algerian authorities, nor are there any

indications that the applicant would not have been admitted to Algeria

had he decided to go to that country.

In this respect the Commission also notes that the applicant has not

given any reasons why on the occasion of his last expulsion from the

Netherlands he did not return to Algeria, although this was made

possible by the Netherlands authorities, but decided to go to Morocco

instead.

Under these circumstances the Commission is of the opinion that,

although the Netherlands authorities do not appear to have been very

active in trying to assist in finding a solution to the applicant's

problems, the applicant himself was primarily responsible for the

situation he complains of.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27, para. 2

(Art. 27-2) of the Convention.

The applicant has also complained that he was detained in police cells

for long periods of time and he has also invoked Article 3 (Art. 3)

of the Convention in this respect.

However, the Commission notes that the applicant failed to submit any

evidence to support his allegations concerning the conditions of his

detention and it follows that his complaints in this respect must also

be regarded as manifestly ill-founded within the meaning of

Article 27, para. 2 (Art. 27-2) of the Convention.

The applicant has further complained that since his status as a

stateless person had not been properly established, his detention on

various occasions was contrary to Article 5 (Art. 5) of the

Convention, which provides, inter alia that "Everyone has the right to

liberty and security of person ...".

However, the Commission finds that the applicant was lawfully detained

in accordance with the provisions of Article 5, para. 1, sub- para. f

(Art. 5-1-f) of the Convention as "...a person against whom action is

being taken with a view to deportation...".

Consequently, the remainder of the application must also be rejected

as manifestly ill-founded within the meaning of Article 27, para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HARABI v. THE NETHERLANDS

HARABI v. THE NETHERLANDS

LEXI