Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32037/96

by Shakil AMED

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, 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 1 April 1996 by

Shakil AMED against the Netherlands and registered on 26 June 1996

under file No. 32037/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:THE FACTS

The applicant is a national of Pakistan, born in 1966, and has

been expelled from the Netherlands to Pakistan on 6 July 1994. His

present whereabouts are unknown. He is represented by Mr F.W. King, a

legal adviser working in Leiden, the Netherlands.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

When boarding a ferry in the Netherlands bound for the United

Kingdom on 10 June 1994, the applicant was found to carry a forged

French passport. He was arrested and detained on remand. He was

subsequently detained under the Aliens Act (Vreemdelingenwet) with a

view to his expulsion from the Netherlands. Upon his arrest the

applicant stated that he had obtained the passport from his uncle, who

was living in London and who would be awaiting him at Harwich. He

further stated that this uncle had promised him work.

When questioned further by the police on 13 June 1994, the

applicant stated that he was a Pakistani national, born in 1966, and

that he had come to the Netherlands with a forged passport in order to

travel to family in the United Kingdom. He further stated that his

authentic papers were in Pakistan and that he wished to return to his

mother in Pakistan as soon as possible.

On 20 June 1994, the applicant filed a request for asylum or,

alternatively, a residence permit on humanitarian grounds. When heard

on this request on 22 June 1994, the applicant stated, inter alia, that

he did hold a valid Pakistani passport and identity card, but that

these documents were still in Pakistan with his mother. He indicated

his mother's address and stated that he had lived with her until his

departure from Pakistan. He also declared tht he had two brothers and

five sisters in Pakistan. He had left Pakistan for fear of his life as

the leader of the ruling Pakistan People Party (PPP) wanted to kill him

for being a member of the Muhajir Qoumi Movement (MQM), a political

organisation striving for the independence of the city of Karachi

within Pakistan.

He stated that the MQM leader had been granted asylum in the

United Kingdom and that the authorities of Pakistan were actively

persecuting the MQM and had summarily executed a number of its members

recently, including a friend of the applicant who was killed in

April 1994. He stated that he had stopped his activities for the MQM

in 1992 in view of the rising power of the PPP and that he had received

threats.

He further stated that he had bought the forged French passport

in Karachi. When confronted with the discrepancies between his asylum

statement and earlier statement to the police, the applicant replied

he was absent-minded and had lied. He had not applied for asylum

earlier because his legal adviser had not informed him of this

possibility.

The Deputy Minister of Justice (Staatssecretaris van Justitie)

rejected the applicant's request for asylum and a residence permit on

24 June 1994 as ill-founded. It was further decided that an appeal

against this decision would not have any suspensive effect as to the

applicant's expulsion. This decision was served on the applicant on

27 June 1994. The applicant filed an appeal with the Regional Court

(Arrondissementsrechtbank) of The Hague on 5 July 1994.

The applicant was expelled on 6 July 1994 to Pakistan. Since that

date neither the applicant's representative nor the applicant's family

residing in the Netherlands have heard from him.

On 2 February 1996, the Regional Court rejected the applicant's

appeal as ill-founded. Insofar as the applicant had alleged that his

expulsion was contrary to Article 3 of the Convention, the Regional

Court doubted the veracity of the applicant's account. Even assuming

it was correct, the Regional Court noted that the applicant had ceased

his activities for the MQM already in 1992 and had remained in Pakistan

until 9 June 1994 without having encountered any problems from the side

of the authorities. It further found the applicant's reasons for his

fear to have remained unsubstantiated. The information submitted was

considered too general to allow any conclusions to be drawn as to the

applicant's personal situation. In these circumstances, the Regional

Court did not find it established that the applicant would be subjected

to treatment contrary to Article 3 of the Convention in Pakistan.

COMPLAINTS

The applicant complains that his expulsion to Pakistan was

contrary to Article 3 of the Convention. It is further submitted that

since the applicant's expulsion neither the applicant's representative

nor the applicant's family residing in the Netherlands have heard from

him and that it must, therefore, be assumed that the applicant has been

killed upon his return to Pakistan.

THE LAW

The applicant complains that his expulsion to Pakistan was

contrary to Article 3 (Art. 3) of the Convention.

Article 3 (Art. 3) of the Convention provides as follows:

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

treatment or punishment."

The Commission observes that Contracting States have the right,

as a matter of well-established international law and subject to their

treaty obligations including those under Article 3 (Art. 3) of the

Convention, to control the entry, residence and expulsion of aliens.

Furthermore it must be noted that the right to political asylum

is not protected in either the Convention or its Protocols. However,

an expulsion decision may give rise to an issue under Article 3

(Art. 3), and hence engage the responsibility of a State under the

Convention, where substantial grounds have been shown for believing

that the person concerned faced a real risk of being subjected to

torture or to inhuman or degrading treatment or punishment in the

country to which he or she was to be expelled. A mere possibility of

ill-treatment is not in itself sufficient to give rise to a breach of

this provision (cf. Eur. Court HR, Vilvarajah and Others v. United

Kingdom judgment, ibid., p. 34, para. 103, and p. 37, para. 111).

The Commission also recalls that ill-treatment must attain a

minimum level of severity if it is to fall within the scope of

Article 3 (Art. 3) (cf. No. 27776/95, Dec. 26.10.1995, D.R. 83, p.

101). An assessment of whether such a treatment is in breach of this

provision, must be a rigorous one in view of the absolute character of

this Article (cf. Eur. Court HR, Chahal v. United Kingdom judgment,

ibid., para. 96).

The Commission has examined the applicant's submissions and the

documents in support of his application. The Commission notes that the

applicant's activities for the MQM gave him no cause to flee Pakistan

immediately, but only after two years.

The Commission further notes that the applicant's allegations as

regards his membership and activities for the MQM and the alleged

threats have remained unsubstantiated in the proceedings in the

Netherlands. The Commission cannot, therefore, find the national

authorities' findings as regards the risk that the applicant would be

exposed to treatment contrary to Article 3 (Art. 3) of the Convention

unreasonable.

Insofar as it has been suggested that the applicant has probably

been killed upon his return to Pakistan, the Commission notes from the

applicant's submissions that his mother, five sisters and two brothers

live in Pakistan and that he has family members residing in the

Netherlands. The Commission does not find it established that it was

impossible for the applicant's representative to establish contacts

with the applicant's family in order to obtain information about the

applicant's fate.

In these circumstances, the Commission is of the opinion that it

has not been established that the applicant was exposed to a real risk

of being subjected to treatment contrary to Article 3 (Art. 3) of the

Convention when he was returned to Pakistan.

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

AMED v. THE NETHERLANDS

AMED v. THE NETHERLANDS

LEXI