Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33124/96

by Abdurahim INCEDURSUN

against the Netherlands

The European Commission of Human Rights sitting in private on

25 February 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 August 1996 by

Abdurahim INCEDURSUN against the Netherlands and registered on

24 September 1996 under file No. 33124/96;

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 Turkish citizen of Kurdish origin, born in

1952, and at present residing in the Netherlands. Before the Commission

he is represented by Ms G.E.M. Later, a lawyer practising in The Hague.

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

summarised as follows.

The applicant entered the Netherlands on 5 June 1995 and, on

7 June 1995, requested asylum, or alternatively a residence permit for

humanitarian reasons. According to the applicant, he risked political

persecution in Turkey for his known sympathies for the cause of the

Kurdish people. He stated that he had been politically active between

1984 and 1992 at the municipal level and that his brother I.'s

political activities for the Kurdish people had made I., a founding

member of the political party HEP (Halkin Emek Partisi - People's

Working Party; at present an illegal and dissolved pro-Kurdish party),

a public figure nationwide. As a result of these political activities,

the Turkish authorities started to exert pressure on the applicant's

family.

The applicant stated that he had been arrested in 1992 on five

occasions and that he had been detained for periods varying from one

week to twenty days in the course of which he had been questioned and

ill-treated. He also stated that, together with his brother I. and

thirteen others, he had been prosecuted on charges of aiding and

abetting the PKK (Kurdish Workers' Party - an armed separatist

movement). In 1994 he learned that, by judgment of 23 December 1992,

the State Security Court of Diyarbakir had acquitted him and all other

accused of these charges for lack of evidence. The applicant further

stated that, upon the advice of his family and a local official, he had

since 1992 been living in hiding in different places in Turkey under

false identities, that of the persons who had been prosecuted together

with him in 1992, five persons had been killed at some later point in

time and that his brother I. had disappeared and is presumed dead. He

stated that he had left Turkey upon the advice of his family, who told

him that the police regularly visits them and are looking for him.

On 25 July 1995, the State Secretary for Justice

(Staatssecretaris van Justitie) rejected the applicant's requests. As

regards the applicant's request for asylum, the State Secretary

considered that it had not been established that the applicant had

substantial grounds to fear persecution in Turkey. The State Secretary

considered in this respect that, apart from the five times in 1992 when

the applicant had been arrested and detained for a certain period of

time without any further consequences and the criminal proceedings

against him which had in fact ended in an acquittal, the applicant had

since then not encountered any problems with the authorities. As

regards his request for a residence permit, the State Secretary

recalled that under Article 11 para. 5 of the Aliens Act

(Vreemdelingenwet) a residence permit can be refused on grounds of

public interest, since the Dutch authorities in applying Article 11

para. 5 of the Aliens Act follow a restrictive immigration policy in

view of the population and employment situation in the Netherlands. As

the applicant's presence in the Netherlands could not be regarded as

serving any specific Dutch interests and as no compelling humanitarian

reasons were found to exist on the basis of which a residence permit

could be issued, the State Secretary of Justice considered that the

applicant did not satisfy the criteria for the issuing of a residence

permit.

On 23 August 1995, the applicant filed an objection

(bezwaarschrift) against this decision with the State Secretary. In

support of his objection, the applicant stated that in his political

activities he had always strongly supported the interests of the

Kurdish people, that the HEP party had been declared illegal in 1993

and that, according to an official report (ambtsbericht) of the

Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse

Zaken) of 12 January 1995, criminal proceedings had been instituted

against parliamentarians of that party. Referring to a letter of

20 January 1995 of Amnesty International setting out in a general way

the persecution of members and supporters of the pro-Kurdish parties,

the applicant argued that since he was known as a political activist,

as a member of a known Kurdish family and as the brother of a prominent

member of a prohibited party, his expulsion to Turkey would expose him

to persecution on grounds of illegal political activities supporting

the cause of the Kurdish people.

Pursuant to Article 32 of the Aliens Act, the State Secretary

decided on 20 October 1995 that the applicant was not allowed to stay

in the Netherlands pending any appeal proceedings instituted by him and

ordered him to leave the Netherlands within two weeks.

On 30 October 1995, the applicant requested the President of the

Aliens' Chamber (Vreemdelingenkamer) of the Regional Court (Arrondisse-

mentsrechtbank) of The Hague to grant an interim measure (voorlopige

voorziening) allowing him to await the outcome of the objection

proceedings in the Netherlands.

Following a hearing held on 12 March 1996, the President of the

Aliens' Chamber rejected the applicant's request for an interim measure

on 19 March 1996. The President noted that the applicant had stated

that he had only been politically active when this was legally

possible, that he had been acquitted in 1992 and that in the period

between the end of 1992 and his departure to the Netherlands in 1995,

the applicant had been able to live in Turkey. The President did not

find it established that the Turkish authorities still considered the

applicant as an important political opponent in whom they were actively

interested.

Insofar as the applicant relied on Article 3 of the Convention,

the President found no substantial grounds on the basis of which the

existence of a genuine and personal risk of treatment contrary to this

provision on his return to Turkey had to be assumed. The President

further found that no compelling humanitarian reasons for granting the

applicant a residence permit had become apparent.

Having reached this finding and as no other legal rules appeared

to have been violated, the President concluded that the State

Secretary's decision not to allow the applicant to remain in the

Netherlands pending the outcome of the proceedings regarding the

applicant's objection could not be regarded as unreasonable. As the

applicant's objection did not stand a reasonable chance of success and

as a further investigation was not held to be able to contribute to the

examination of the applicant's case, the President, in pursuance of

Article 33b of the Aliens Act, also decided the merits of the

applicant's objection against the State Secretary's decision of

25 July 1995 and rejected it as ill-founded.

On 30 May 1996, the applicant requested the State Secretary of

Justice to review (herziening) his request for asylum, or alternatively

for a residence permit on humanitarian grounds. He emphasised that he

had only been able to live in Turkey between 1992 and 1995 under false

identities, that two of his brothers had also fled Turkey, that in 1994

his brother I. had been prosecuted on charges of illegal political

activities related to the PKK and that it must be assumed that he had

died given the fact that several obituaries had been published since.

The applicant further requested not to be expelled pending the outcome

of his request for a revision.

After having considered the applicant's arguments, the State

Secretary of Justice rejected the revision request on 5 August 1996,

finding no reasons for a revision of the previous rejection of the

applicant's requests.

By letter of 23 August 1996, the State Secretary reminded the

applicant that he had been ordered to leave the Netherlands

on 20 October 1995.

On 26 August 1996, the applicant filed an objection against the

decision of 5 August 1996. These proceedings are currently still

pending.

On 26 August 1996, the applicant submitted a new request to the

President of the Aliens' Chamber of the Regional Court of The Hague to

grant an interim measure allowing him to await the outcome of the

objection proceedings in the Netherlands.

Following a hearing held on 3 December 1996, the President of the

Aliens' Chamber rejected the applicant's request for an interim measure

on 19 December 1996. Insofar as the applicant argued that the

President, in the decision of 19 March 1996, had committed errors in

the assessment of the applicant's situation, it was held that this

finding could not be reviewed in the present proceedings as Article

33(e) of the Aliens Act excluded an appeal against such decisions. The

President further found that no new facts or circumstances had become

apparent.

Referring to the previous decision of 19 March 1996, the

President of the Aliens' Chamber held that there could be no reasonable

doubt that there was no danger of persecution within the meaning of

Article 15 para. 1 of the Aliens Act. No indication was found for the

assumption that the objection of 26 August 1996 would stand a

reasonable chance of success.

Having reached this finding and as no other legal rules appeared

to have been violated, the President concluded that the State

Secretary's decision not to allow the applicant to remain in the

Netherlands pending the outcome of the applicant's objection could not

be regarded as unreasonable. As the applicant's objection did not stand

a reasonable chance of success and as a further investigation was not

held to be able to contribute to the examination of the applicant's

case, the President, in pursuance of Article 33b of the Aliens Act,

also decided the merits of the applicant's objection of 26 August 1996

and rejected it as ill-founded.

COMPLAINTS

1. The applicant complains that his expulsion to Turkey would expose

him to a real risk of being subjected to treatment contrary to

Article 3 of the Convention and could possibly result in his being

killed without any due process of law and thus amount to a violation

of Article 2 of the Convention and Protocol No. 6.

2. The applicant complains under Article 6 para. 1 of the

Convention, both in itself and in conjunction with Article 13 of the

Convention, that the Dutch authorities and the President of the

Regional Court have incorrectly assessed the applicant's problems by

having insufficiently considered the evidence submitted by the

applicant in support of his requests.

3. The applicant finally complains that he is currently residing

illegally in the Netherlands and that, if arrested, he will be detained

with a view to his expulsion which in view of the problems related to

the proceedings before the President of the Regional Court will be in

violation of Article 5 of the Convention.

THE LAW

1. The applicant complains that his expulsion to Turkey would expose

him to a real risk of being subjected to treatment contrary to Article

3 (Art. 3) of the Convention and could possibly result in his being

killed without any due process of law and thus amount to a violation

of Article 2 of the Convention and Protocol No. 6 (P6-2) to the

Convention.

The Commission is of the opinion that it cannot, at this stage

of the proceedings, determine the admissibility of this part of the

application and it is therefore necessary, in accordance with Rule 48

para. 2 (b) of the Commission's Rules of Procedure, to give notice of

this part of the application to the respondent Government.

2. The applicant complains under Article 6 (Art. 6) of the

Convention, both in itself and in conjunction with Article 13

(Art. 6+13) of the Convention, that the Dutch authorities and the

President of the Regional Court have incorrectly assessed the

applicant's problems by having insufficiently considered the evidence

submitted by the applicant.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, reads:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

... hearing ... by a ... tribunal established by law...."

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

Insofar as the applicant complains under Article 6 para. 1

(Art. 6-1) of the Convention, the Commission recalls its constant case-

law, that this provision is not applicable to proceedings concerning

the granting of political asylum or residence permits for aliens (cf.

No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205; and No. 13162/87, Dec.

9.11.87, D.R. 54 p. 211).

Insofar as the applicant relies on Article 13 (Art. 13) of the

Convention, the Commission notes that the applicant's case, including

his argument that his expulsion would amount to a violation of Article

3 (Art. 3) of the Convention, has been examined by the State Secretary

of Justice and the President of the Regional Court, respectively. The

Commission is, therefore, of the opinion that the applicant had

effective remedies within the meaning of Article 13 (Art. 13) of the

Convention, of which he did in fact avail himself.

It follows that this part 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.

3. The applicant finally complains that he is currently residing

illegally in the Netherlands and that, if arrested, he will be detained

with a view to his expulsion which in view of the problems related to

the proceedings before the President of the Regional Court will be in

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

Article 5 (Art. 5) of the Convention, insofar as relevant, reads:

"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.

...."

The Commission notes in the first place that the applicant has

failed to raise this complaint in the domestic procedure and has,

therefore, failed to exhaust domestic remedies (cf. No. 19601/92,

Dec. 19.1.95, D.R. 80 p. 46).

Even assuming that the applicant would have duly exhausted

domestic remedies, the Commission notes that it does not appear nor is

it alleged that the applicant has in fact been arrested and detained.

In these circumstances, the Commission finds that the applicant,

as regards his complaint under Article 5 (Art. 5) of the Convention,

cannot be considered a victim within the meaning of Article 25

(Art. 25) of the Convention.

It follows that also this complaint must 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,

by a majority,

DECIDES TO ADJOURN the applicant's complaint that his expulsion

would be contrary to his rights under Articles 2 and 3 of the

Convention and Protocol No. 6 to the Convention;

unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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INCEDURSUN v. THE NETHERLANDS

INCEDURSUN v. THE NETHERLANDS

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