AS TO THE ADMISSIBILITY OF

                      Application No. 30429/96

                      by Kamal ARTIN and

                      Vereniging B,RIT SJALOM

                      against the Netherlands

     The European Commission of Human Rights (Second Chamber) sitting

in private on 27 November 1996, the following members being present:

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 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

           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 19 January 1996

by Kamal ARTIN and Vereniging B,RIT SJALOM against the Netherlands and

registered on 1 March 1996 under file No. 30429/96;

     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 first applicant is a Syrian citizen, born in 1964, and at

present residing in the Netherlands. The second applicant is an

association with its registered seat in the Netherlands, which works

for freedom and justice. Before the Commission the applicants are

represented by Mr. J.P.E. Baakman, a legal adviser practising in

Haaksbergen, the Netherlands.

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

summarised as follows.

A.   The particular circumstances of the case

     The first applicant entered the Netherlands on 18 October 1992

and requested asylum, or alternatively a residence permit for

humanitarian reasons, on 27 October 1992. He pointed out that on

2 May 1992 he had been arrested on suspicion of involvement in the

"Riyad el Turk", a communist party in Syria, interrogated about his

political activities and tortured. Following his release after 15 days,

he had been detained a further six times.

     On 24 April 1993 the State Secretary for Justice

(Staatssecretaris van Justitie) rejected the first applicant's

requests. As regards his request for asylum, the State Secretary for

Justice considered that it had not been established that the first

applicant had substantial grounds to fear persecution in Syria. In this

respect it was noted that there is no communist party with the name

"Riyad el Turk", which affected the credibility of the first

applicant's account seriously. As regards his request for a residence

permit, the State Secretary for Justice recalled that pursuant to

Article 11 para. 5 of the Aliens Act (Vreemdelingenwet) the granting

of a residence permit could 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. The State

Secretary for Justice furthermore considered that since the first

applicant's presence in the Netherlands did not serve any specific

Dutch interest, and since no compelling humanitarian reasons were

considered to exist on the basis of which he could be granted a

residence permit, the applicant did not fulfil the conditions for

obtaining a residence permit.

     On 9 June 1993 the first applicant requested the State Secretary

for Justice to review this decision. In support of his request, he

submitted a copy of a summons. Furthermore, he alleged that in Syria

he had been discriminated against since his religious conviction

(christian) prevented him from obtaining employment. He moreover

submitted that he did not want to serve in the military.

     On 18 November 1994 the State Secretary for Justice rejected the

first applicant's request for revision. In this respect, account was

taken of the fact that the first applicant had declared that he had not

been a member or sympathiser of any political party in Syria. It was

also, inter alia, noted that research done by the Netherlands Ministry

of Foreign Affairs had shown that the summons submitted by the

applicant was not authentic. The State Secretary for Justice decided

furthermore that the first applicant would not be allowed to remain in

the Netherlands pending any appeal proceedings to be instituted by him.

     On 7 December 1994 the first applicant filed an appeal with the

Aliens' Chamber (Vreemdelingenkamer) of the Regional Court

(Arrondissementsrechtbank) of The Hague sitting at Zwolle

(nevenzittingsplaats Zwolle). At the same day he requested the

President of the Aliens' Chamber to grant an interim measure

(voorlopige voorziening) allowing him to await the outcome of the

appeal proceedings in the Netherlands.

     The President of the Aliens' Chamber rejected the request for an

interim measure on 11 October 1995. Insofar as the first applicant had

invoked Article 3 of the Convention, the President found no substantial

grounds on the basis of which the existence of a real risk of inhuman

treatment on his return to Syria had to be assumed. Since the first

applicant's account was considered inconsistent, the President

expressed doubts as to its veracity. In this respect, the President

noted, inter alia, that as regards his military service the first

applicant had submitted a copy of a letter from his father in which it

was stated that his son had been in the army and had deserted, whereas

the first applicant himself had explained during an interview with the

Dutch authorities that he had managed to stay out of the army by giving

small presents to an officer. According to the Dutch authorities,

however, the first applicant was registered in Syria as having served

in the army between 1987 and 1989.

      Further investigation was not held to be able to contribute to

the appeal proceedings. The President, therefore, considered - pursuant

to Article 8:86 of the Administrative Law Act - that there were grounds

to decide simultaneously on the appeal instituted by the first

applicant and declared this appeal ill-founded on the same grounds as

set out above.

B.   Relevant domestic law

     Article 8:86 (1) of the Administrative Law Act (Algemene wet

bestuursrecht) provides as follows:

     "Indien het verzoek (om voorlopige voorziening) wordt gedaan

     indien beroep bij de rechtbank is ingesteld en de president van

     oordeel is dat na de zitting ... nader onderzoek redelijkerwijs

     niet kan bijdragen aan de beoordeling van de zaak, kan hij

     onmiddellijk uitspraak doen in de hoofdzaak."

     "When the request (to grant an interim measure) is made at the

     time when an appeal has already been filed with the Regional

     Court and the President considers that following the hearing

     further investigation cannot reasonably contribute to the

     determination of the merits of the case, he may simultaneously

     decide on the appeal instituted."

     Article 33e of the Aliens Act (Vreemdelingenwet) provides as

follows:

     "Artikel 37 van de Wet op de Raad van State is niet van

     toepassing op de beslissingen van de rechtbank te 's-Gravenhage

     in beroepen tegen beschikkingen, gegeven op grond van deze wet."

     "Article 37 of the Act on the Council of State is not applicable

     to decisions of the Regional Court of The Hague concerning

     appeals against administrative decisions, taken pursuant to this

     Act."

     Article 37 (1) of the Act on the Council of State reads, insofar

as relevant, as follows:

     "Een belanghebbende en het bestuursorgaan kunnen bij de Afdeling

     (Bestuursrechtspraak) hoger beroep instellen tegen een uitspraak

     van de rechtbank als bedoeld in Afdeling 8.2.6 van de Algemene

     wet bestuursrecht en tegen een uitspraak van de president van de

     rechtbank als bedoeld in artikel 8:86 van die wet ..."

     "The parties concerned may file an appeal with the

     (Administrative Law) Division against a decision of the Regional

     Court as referred to in Section 8.2.6 of the Administrative Law

     Act and against a decision of the President of the Regional Court

     as referred to in Article 8:86 of that Act ..."

COMPLAINTS

1.   The applicants complain that the first applicant's expulsion

would expose him to a real risk of being subjected to a treatment

contrary to Article 3 of the Convention.

2.   The applicants furthermore complain that the manner in which the

first applicant's asylum proceedings before the Aliens' Chamber of the

Regional Court were conducted, discloses a violation of Article 6

para. 1 and Article 13 of the Convention.

     In this respect the applicants argue that the first applicant has

been withheld a fair trial since the President of the Aliens' Chamber,

in dealing with the request for an interim measure, decided

simultaneously - pursuant to Article 8:86 of the Administrative Law Act

- on the appeal. As a consequence, the first applicant was denied a

public hearing within the meaning of Article 6 para. 1 as the hearing

which took place was only supposed to concern the request for an

interim measure.

3.   Finally, the applicants complain under Article 14 in conjunction

with Article 6 of the Convention of the difference in treatment in

administrative proceedings between aliens and other civilians. In this

respect they point out that, although Article 8:86 of the

Administrative Law Act is applicable to all administrative proceedings,

pursuant to Article 33e of the Aliens Act no appeal lies against

decisions reached by the Regional Court in cases concerning foreigners.

THE LAW

     Concerning the second applicant

     The Commission recalls that in order to claim to be a victim of

an interference with a right under the Convention, an applicant must

be "directly affected" by the measure complained of (see e.g. Eur.

Court HR Open Door and Dublin Well Woman v. Ireland judgment of 29

October 1992, Series A no. 246, p. 22, para. 44).

     The Commission notes that the second applicant has not been

subject to any measure in respect of which complaints have been raised

in the present application. Furthermore, the applicants have not

substantiated how the second applicant is affected by the decisions

taken in respect of the first applicant. Consequently, the Commission

finds that the second applicant cannot be considered a victim within

the meaning of Article 25 (Art. 25) of the Convention.

     It follows that, to the extent that the complaints have been

brought by the second applicant, they must be rejected as incompatible

ratione personae with the provisions of the Convention within the

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

     Concerning the first applicant

1.   The first applicant alleges that his expulsion to Syria will

expose him to torture or inhuman and degrading treatment in breach of

Article 3 (Art. 3) of the Convention, which reads as follows:

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

     treatment or punishment."

     The Commission observes that the 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 (cf. Eur. Court HR,

Vilvarajah and Others v. the United Kingdom judgment of 30 October

1991, Series A no. 215, p. 34, para. 102). Furthermore it must be noted

that the right to political asylum is not contained in either the

Convention or its Protocols. However, an expulsion decision may give

rise to an issue 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 (ibid.,

p. 34, para. 103). A mere possibility of ill-treatment is not in itself

sufficient to give rise to a breach of this provision (ibid., 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). 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 (ibid., p. 36, paras. 107 and 108).

     As regards the present case, the Commission notes that in his

application the first applicant did not substantiate his complaint

under Article 3 (Art. 3) of the Convention.

     The Commission further shares the considerable doubts expressed

by the President of the Aliens' Chamber as to the credibility of the

first applicant's account. The Commission notes, in particular, that

since the first applicant stated to the Dutch authorities that he had

not been a member or sympathiser of any political party in Syria, it

appears unlikely that documents of the communist party would have been

found in his house. Moreover, the summons which the first applicant

submitted to the State Secretary for Justice in support of his request

for a review of the negative decision, was found by the Dutch

authorities not to be authentic. As regards his military service, the

first applicant's account is very inconsistent and therefore not

convincing: in a copy of a letter from his father which he submitted

during the domestic proceedings it is stated that he had been in the

army and that he had deserted, whereas the first applicant himself had

explained during an interview with the Dutch authorities that he had

managed to stay out of the army by giving small presents to an officer.

On the other hand, according to the Dutch authorities the first

applicant is registered in Syria as having served in the army between

1987 and 1989.

     The Commission concludes that is has not been established that

there are substantial grounds for believing that the first applicant

would be exposed to a real risk of being subjected to treatment

contrary to Article 3 (Art. 3) of the Convention if returned to Syria.

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

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

(Art. 27-2) of the Convention.

2.   The first applicant further complains that the proceedings in

respect of his request for asylum or a residence permit did not meet

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

     This provision, insofar as relevant, stipulates:

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

     everyone is entitled to a fair and public hearing within a

     reasonable time by an independent and impartial tribunal

     established by law...."

      The Commission recalls however that it has constantly held that

the procedures followed by public authorities to determine whether an

alien should be allowed to stay in a country or should be expelled do

not involve the determination of civil rights within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention (cf. e.g. No. 8118/77,

Dec. 19.3.81, D.R. 25 p. 105 and No. 13162/87, Dec. 9.11.87, D.R. 54

p. 211). Accordingly, the Commission must reject this part of the

application as being incompatible ratione materiae with the provisions

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

3.   The first applicant also invokes Article 13 (Art. 13) of the

Convention and contends that under Dutch law he did not have at his

disposal an effective remedy to bring his complaint of a violation of

Article 6 (Art. 6) before a domestic authority.

     Article 13 (Art. 13) provides:

     "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 that according to the Convention organs'

established case-law, this provision has been interpreted as requiring

the existence of a remedy before a national authority for anyone who

may make an "arguable claim" that his rights under the Convention have

been violated (cf. e.g. Eur. Court HR, Boyle and Rice v. United Kingdom

judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). In view

of the above conclusion that the complaints raised under Article 6

(Art. 6) of the Convention are incompatible with the provisions of the

Convention, it follows that the first applicant has no "arguable claim"

(cf. No. 10427/83, Dec. 12.5.86, D.R. 47 p. 85). Consequently, this

part of his complaint is manifestly ill-founded within the meaning of

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

4.   The first applicant finally complains that the difference made

in Article 33e of the Aliens Act in conjunction with Article 37 of the

Act on the Council of State between procedures concerning the

eligibility for asylum or a residence permit on humanitarian grounds

and other administrative procedures, amounts to discrimination contrary

to Article 14 in conjunction with Article 6 (Art. 14+6) of the

Convention, which provides as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

     The Commission reiterates that according to the Convention

organs' established case-law, Article 14 (Art. 14) complements the

other substantive provisions of the Convention and the Protocols. It

has no independent existence since it has effect solely in relation to

"the enjoyment of the rights and freedoms" safeguarded by those

provisions. Although the application of Article 14 (Art. 14) does not

necessarily presuppose a breach of those provisions - and to this

extent it is autonomous -, there can be no room for its application

unless the facts at issue fall within the ambit of one or more of the

latter (cf. Eur. Court HR, Abdulaziz, Cabales and Balkandali v. United

Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, para. 71 and

Eur. Court HR, Karlheinz Schmidt v. Germany judgment of 18 July 1994,

Series A no. 291-B, p. 32, para. 22).

     Given that the Commission has found that the first applicant's

complaint under Article 6 (Art. 6) does not fall within the ambit of

this provision, it follows that similarly the complaint under Article

14 is incompatible ratione materiae with the provisions of the

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

     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