Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33708/96

by Beatrice NGALOLA KASHAMA

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 19 August 1996 by

Beatrice NGALOLA KASHAMA against the Netherlands and registered on

8 November 1996 under file No. 33708/96;

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 Zairean national, born in 1969, and currently

resides in the Netherlands. In the proceedings before the Commission,

the applicant is represented by Mr P. Bouman, a lawyer practising in

Helmond, the Netherlands.

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

summarised as follows.

On 1 November 1995, an unidentified woman visited the applicant's

privately owned tailor's workshop in Kinshasa. After having looked at

the applicant's stock she told the applicant she would return with

fabric from which she wished the applicant to make "boubous", a

traditional Zairean dress.

The woman returned to the applicant's workshop on 3 November 1995

and stated that the fabric had not arrived yet. Later on the same day,

the fabric was delivered in the presence of the unidentified woman, who

explained she needed the boubous before 24 November 1995, on which day

the ruling Zairean President would be 30 years in power. On the fabric

the letters M.P.R. were printed. The letters M.P.R. are the initials

of the ruling political party in Zaire.

The applicant informed the woman that she could not accept the

order, as her brother had been killed in the course of a demonstration

held on 29 July 1995. The woman did not accept the applicant's refusal

and asked her "Who is stronger, you or the M.P.R.?"

When the applicant arrived at her workshop on 20 November 1995,

soldiers had arrested the applicant's four employees and seized the

applicant's stock and sewing machine. Upon her arrival the applicant

was also arrested by soldiers and taken away in a jeep. In the car, she

was threatened and sexually harassed by the soldiers. The soldiers

released her after she had paid them US$ 3.000.

After her release, the applicant went in hiding in the house of

one of her customers. On 25 February 1996, with the aid of a third

person to whom she had paid US$ 7.000, the applicant left Zaire for

Belgium. She arrived in the Netherlands on 28 February 1996, where she

requested asylum, or alternatively a residence permit on humanitarian

grounds.

On 29 February 1996, the State Secretary of Justice

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

State Secretary noted that the applicant could only name four kinds of

fabric, could not name different kinds of yarn, did not know what a

pattern is, did not know how to make jackets, sweaters and shirts and

did not know with what fabrics are coloured. Given that the applicant

stated that she privately owned a tailor's workshop and also that she

worked there herself, the State Secretary concluded that the

applicant's very limited knowledge of her trade strongly affected the

credibility of her account.

The State Secretary further considered that the applicant had not

made it plausible that she, by refusing to make certain clothes had

identified herself as a political opponent of the current Zairean

regime. In this respect, the State Secretary also noted that, after the

events on 20 November 1995, the applicant had remained in Kinshasa for

a period of four months without having encountered any problems from

the side of the authorities.

This decision was served on the applicant on the same day. She

was further informed that she had to leave the Netherlands immediately.

On 1 March 1996, the applicant filed an objection

(bezwaarschrift) with the State Secretary of Justice against the

latter's decision of 29 February 1996. On the same day, the applicant

requested the President of the Aliens' Chamber (Vreemdelingenkamer) of

the Regional Court (Arrondissementsrechtbank) of The Hague to grant an

interim measure (voorlopige voorziening) allowing her to await the

outcome of the objection proceedings in the Netherlands.

Following a hearing held on 15 March 1996, the President of the

Regional Court rejected the applicant's request for an interim measure

on 18 March 1996. Like the State Secretary, the President found the

applicant's account not credible. In reaching this finding, the

President had regard to the applicant's very limited knowledge of her

alleged trade and the fact that it had remained unclear how the

applicant had obtained, within a limited period, the amount of US$

10.000 which she had used for leaving Zaire. The President further

considered that the applicant had never been politically active and had

only left Zaire several months after the alleged events.

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

the President held that there were no circumstances indicating that her

expulsion to Zaire would entail a genuine risk for the applicant of

treatment contrary to this provision. The President further found no

circumstances on the basis of which a residence permit on humanitarian

grounds should be granted.

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 her 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 29 February 1996 and rejected it as ill-

founded.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that

her expulsion to Zaire would certainly result in her being killed by

the present regime.

2. The applicant complains under Article 3 of the Convention that

her expulsion to Zaire will result in a real risk of ill-treatment,

given the fact that she is wanted by the Zaïrean authorities.

3. The applicant complains under Article 6 of the Convention, both

in itself and in conjunction with Article 13 of the Convention in that

she cannot submit her case to an independent and impartial tribunal in

such a way that this provides her with an effective remedy. She submits

in this respect that the President of the Regional Court did not

examine the full merits of her case.

4. The applicant complains that her expulsion to Zaire constitutes

a violation of her rights under Articles 9 and 10 of the Convention in

that she cannot exercise these rights in Zaire.

THE LAW

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

Convention that her expulsion to Zaire would certainly result in her

being killed by the present regime.

Article 2 (Art. 2) of the Convention reads as follows:

"1. Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution

of a sentence of a court following his conviction of a crime for

which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in

contravention of this Article when it results from the use of

force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the

escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling

a riot or insurrection."

The Commission recalls that Article 2 (Art. 2) contains two

separate though interrelated basic elements. The first sentence of

paragraph 1 sets forth the general obligation that the right to life

shall be protected by law. The second sentence of this paragraph

contains a prohibition of intentional deprivation of life, delimited

by the exceptions mentioned in the second sentence itself and in

paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73 p. 155).

The Commission finds nothing to indicate that the expulsion of

the applicant would amount to a violation of the general obligation

contained in the first sentence of paragraph 1.

As to the prohibition of intentional deprivation of life, the

Commission does not exclude that an issue might be raised under Article

2 (Art. 2) in circumstances in which the expelling State knowingly puts

the person concerned at such high risk of losing his or her life as for

the outcome to be a near-certainty. The Commission considers, however,

that a "real risk" - within the meaning of the case-law concerning

Article 3 (Art. 3) of the Convention - of loss of life would not as

such necessarily make expulsion an "intentional deprivation of life"

prohibited by Article 2 (Art. 2), although it would amount to inhuman

treatment within the meaning of Article 3 (Art. 3) (cf. No. 25894/94,

Bahaddar v. the Netherlands, Comm. Rep. 13.9.96, paras. 72-81).

It is not necessary for the Commission to decide in what precise

circumstances the risk of the person being killed might constitute a

violation of Article 2 (Art. 2) in a case like the present one, since

in any event the facts of the case do not disclose such a risk.

The Commission notes that it appears from her submissions that

the applicant fears that she may be killed if expelled. The Commission

notes that the applicant has not been sentenced to death, has not

submitted that she is facing any criminal proceedings on charges

carrying capital punishment or that she has received any death threats.

In these circumstances, the Commission cannot find that the

applicant's expulsion to Zaire raises an issue under Article 2

(Art. 2) of the Convention.

It follows that this complaint must be rejected as manifestly-

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 3 (Art. 3) of the

Convention that her expulsion to Zaire will result in a real risk of

ill-treatment, given the fact that she is wanted by the Zaïrean

authorities.

Article 3 (Art. 3) of the Convention reads 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 Article 3 (Art. 3), 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 is 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 her application. The Commission notes that the

applicant has been unable to answer a number of basic questions

relating to her alleged trade. It cannot, therefore, find the national

authorities' findings as regards the credibility of the applicant's

account unreasonable.

The Commission further notes that the alleged events on

20 November 1995 apparently gave the applicant no cause to flee the

country immediately, but only after four months. The Commission further

notes that the applicant's allegation that she is wanted by the Zairean

authorities has remained wholly unsubstantiated.

The Commission finds that the applicant's submissions concerning

her personal situation, as well as the general situation, does not

establish that her position differs from that of the generality of

inhabitants of Zaire.

The Commission is, therefore, of the opinion that it has not been

established that the applicant will be exposed to a real risk of being

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

if returned to Zaire.

It follows that this complaint is manifestly ill-founded within

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

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

Convention, both in itself and in conjunction with Article 13

(Art. 13) of the Convention, in that she cannot submit her case to an

independent and impartial tribunal in such a way that this provides her

with an effective remedy.

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

relevant, reads:

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

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."

The Commission recalls its constant case-law, that Article 6

para. 1 (Art. 6-1) of the Convention 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

her argument that her 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 she did in fact avail herself.

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.

4. The applicant finally complains that her expulsion to Zaire

constitutes a violation of her rights under Articles 9 and 10

(Art. 9, 10) of the Convention in that she cannot exercise these rights

in Zaire.

Article 9 (Art. 9) of the Convention protects the right to

freedom of thought, conscience and religion. Article 10

(Art. 10) of the Convention concerns the right to freedom of

expression.

Even assuming that the applicant's expulsion could raise issues

under these provisions of the Convention, the Commission notes that

this complaint has remained unsubstantiated.

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.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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NGALOLA KASHAMA v. THE NETHERLANDS

NGALOLA KASHAMA v. THE NETHERLANDS

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