Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30913/96

by Dezider, Anna, Angelika,

Dezider jr., Milan and Miroslav SLEPCIK,

against the Netherlands and

the Czech Republic

The European Commission of Human Rights sitting in private on 2

September 1996, 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

M.P. PELLONPÄÄ

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGO

Mr. H.C. KRÃœGER, 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 22 August 1995 by

Dezider, Anna, Angelika, Dezider jr., Milan and Miroslav SLEPCIK

against the Netherlands and the Czech Republic and registered on

1 April 1996 under file No. 30913/96;

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 applicants, born in 1955, 1956, 1973, 1975, 1974 and 1978

respectively, are husband and wife and their four children of whom one

is a minor. They are Roma gypsies and came from Pardubice (Czech

Republic). Currently the applicants reside in the Netherlands.

A. Particular circumstances of the case

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

summarised as follows.

1. Asylum proceedings

On 19 August 1992 the applicants requested asylum or,

alternatively, residence permits for humanitarian reasons in the

Netherlands. They alleged that they had been the victims of

persecution by "skinheads" and that the Czech authorities were unable

or unwilling to offer them protection.

On 15 September 1992 their requests were rejected. On 3 November

1992 the applicants voluntarily withdrew their requests and went home.

On 4 May 1993 the applicants returned to the Netherlands and

again requested asylum and residence permits for humanitarian reasons,

submitting the same grounds as in August 1992.

The applicants' requests were rejected by the State Secretary for

Justice (Staatssecretaris van Justitie) on 5 July 1993. No suspensive

effect was granted to their requests for revision (herziening).

On 1 December 1994 the President of the Regional Court

(Arrondissementsrechtbank) of The Hague granted an interim measure to

the effect that the applicants were allowed to await the outcome of the

revision proceedings in the Netherlands. However, the State filed an

appeal against the President's decision and on 25 January 1996 the

Court of Appeal (Gerechtshof) of The Hague quashed this decision.

The Court of Appeal, in deciding on the matter, had to apply two

criteria: whether the decision that the applicants were not refugees

within the meaning of the Geneva Convention was open to any reasonable

doubt, and whether the applicants' request for revision in respect of

the refusal to grant them a residence permit for humanitarian reasons

stood a reasonable chance of success.

The Court of Appeal found irrelevant the applicants' assertion

that their case was similar to that of another Roma family requesting

asylum in the Netherlands. The Court held that the State had also filed

an appeal against the decision taken by the President of the Regional

Court in that case and that therefore it was clear that the Dutch

authorities did not accept the asylum claims of this other Roma family

either. The Court further held that the applicants had not sufficiently

substantiated their claims that they experienced problems as a result

of the fact that this other Roma family had featured in a television

documentary called 'Gypsy Autumn' and that a "hit list" existed with

the names of sixteen gypsies on it. Given that the applicants had been

in the Netherlands since 25 April 1993, the Court of Appeal found that

it could have been expected of them to adduce some evidence in support

of these claims.

The Court of Appeal also found that an incident which had taken

place on 30 January 1993 during a demonstration of skinheads in the

applicants' home town of Pardubice was regrettable, but did not justify

the conclusion that the applicants were exposed to persecution within

the meaning of the Geneva Convention. The Court of Appeal did not

accept the applicants' contention that the Czech authorities

encouraged, permitted or refused to act against such incidents. In

this respect the Court took into account that during the demonstration

on 30 January 1993 fourteen skinheads had been arrested and, after the

applicants' house had been damaged, it had been sealed by police and

the applicants had been informed that attempts would be made to find

the perpetrators.

The Court of Appeal acknowledged that the applicants might be

stateless. However, it appeared that the applicants had opted for Czech

nationality and that these proceedings were still pending. The Court

of Appeal did not find it established that the applicants would be

refused Czech nationality or that they would not be allowed to await

the outcome of these proceedings in the Czech Republic.

Finally, the Court of Appeal dismissed the applicants' claim that

they were entitled to a residence permit pursuant to the so-called

'three year policy'. The Court of Appeal found that this policy did not

apply to the applicants because they had not yet been in the

Netherlands for three years.

2. Proceedings concerning the acquisition of citizenship of the

Czech Republic and/or of the Slovak Republic

In February 1993 the applicants applied to the Ministry of the

Interior of the Slovak Republic for Slovak citizenship. By letter of

3 March 1993 the applicants were informed by the Minister of the

Interior that, in view of the principle of ius sanguinis, they already

were Slovak citizens.

In November 1993 the applicants applied to the Ministry of the

Interior to be released from Slovak citizenship. In December 1993 the

Ministry issued the release documents and sent these to the District

Office of Pardubice where the applicants lived. The District Office

invited the applicants to take receipt of the release documents and to

express their choice of citizenship before 30 June 1994, in accordance

with Article 18 of Law No. 40/1993 on acquisition and loss of the

citizenship of the Czech Republic. The applicants did not reply to

this invitation.

By letter of 22 May 1995 the Embassy of the Slovak Republic

confirmed the above situation. By letters of 7 and 19 March 1996 the

Embassy of the Czech Republic confirmed that none of the applicants are

nationals of the Czech Republic.

B. Relevant domestic law

Law No. 40/1993 on acquisition and loss of the citizenship of the Czech

Republic [Translation]

Article 7

Citizenship by conferment

"1. Citizenship of the Czech Republic can be conferred upon

request on natural persons who simultaneously meet the following

conditions:

a) having permanently and continuously resided on the

territory of the Czech Republic for at least five years,

b) being able to prove release from citizenship of another

state, or loss of previous foreign citizenship upon acquisition

of the citizenship of the Czech Republic, unless the persons

concerned are stateless persons,

c) not having been sentenced in the past five years for

wilfully having committed a punishable offence,

d) being able to prove knowledge of the Czech language. (...)"

Special provisions applying to citizenship of the Czech Republic

in connection with the dissolution of the Czech and Slovak

Federal Republic

Article 18

Choice of citizenship

"1. Citizens of the Slovak Republic may choose citizenship of

the Czech Republic by means of a declaration made by 30 June 1994

at the latest provided that they

a) have been residing continuously on the territory of the

Czech Republic for at least two years,

b) present documents of release from citizenship of the Slovak

Republic, except in cases where the person concerned is able to

prove that he has applied for release from citizenship of the

Slovak Republic and his application has not been granted within

three months, and he simultaneously declares at the district

office that he relinquishes citizenship of the Slovak Republic;

this document is not required in the case where opting for

citizenship of the Czech Republic automatically entails the loss

of citizenship of the Slovak Republic,

c) have not been sentenced in the past five years for wilfully

having committed a punishable offence.

(...)

5. Natural persons shall make such declaration at the

appropriate district office in the place of their permanent

residence, or the place of their last permanent residence, abroad

at the diplomatic or consular office of the Czech Republic."

COMPLAINTS

1. The applicants complain of several infringements of Article 6

para. 1 of the Convention in connection with the asylum proceedings in

the Netherlands. They maintain that the Dutch authorities violated

Article 6 para. 1 of the Convention, read in conjunction with

Article 14 of the Convention, when they refused, after an unreasonable

time, the applicants' requests for asylum and a residence permit. They

also complain that the proceedings before The Hague Court of Appeal

were not public.

2. The applicants further complain in substance that they run a real

risk of being exposed to treatment contrary to Article 3 of the

Convention if they are expelled by the Netherlands authorities to the

Czech Republic, because of their affiliation to the minority of Roma

gypsies.

3. The applicants finally complain that after the dissolution of the

Czech and Slovak Federal Republic, they could not, according to Article

1 of Law No. 40/1993, acquire Czech citizenship automatically. They

argue that according to Article 18 para. 1 of this law they can only

obtain Czech citizenship if they fulfil certain conditions relating to

residence and lack of criminal convictions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1995.

On 8 March 1996 the Commission decided not to apply Rule 36 of

the Commission's Rules of Procedure.

The application was registered on 1 April 1996.

THE LAW

1. The applicants complain that the Dutch authorities violated

Article 6 para. 1 of the Convention, read in conjunction with Article

14 (Art. 6-1+14) of the Convention, when they refused, after an

unreasonable time, the applicants' requests for asylum and a residence

permit. They also complain that the proceedings before The Hague Court

of Appeal were not public.

The Commission has consistently held that the procedures followed

by the public authorities to determine whether an alien should be

allowed to stay in a country or should be expelled do not fall within

the scope of the Convention since they do not involve the determination

of civil rights within the meaning of Article 6 (Art. 6) of the

Convention (cf., e.g., No. 12122/86, Dec. 16.10.86, D.R. 50 p. 268, and

No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280).

Moreover, the Commission notes that the Netherlands have not

ratified Protocol No. 7 to the Convention. Accordingly, there is no

room for considering the applicants' above complaint under Article 1

of this Protocol (P7-1).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

As regards the complaint under Article 14 (Art. 14) of the

Convention, the Commission recalls that Article 14 (Art. 14) of the

Convention 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 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, 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 applicants'

procedural complaint does not fall within the ambit of the Convention,

it follows that similarly the complaint under Article 14

(Art. 14) is incompatible ratione materiae with the provisions of the

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

Convention.

2. The applicants complain that they run a real risk of being

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

if they are expelled by the Netherlands authorities to the Czech

Republic.

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 recalls that Contracting States have the right to

control the entry, residence and expulsion of aliens. The right to

political asylum is not protected in either the Convention or its

Protocols (cf. Eur. Court HR, Vilvarajah and Others v. the United

Kingdom judgment of 30 October 1991, Series A no. 215, p. 34,

para. 102). However, expulsion by a Contracting State of an asylum

seeker may give rise to an issue under Article 3 (Art. 3) of the

Convention, and hence engage the responsibility of that State under the

Convention, where substantial grounds have been shown for believing

that the person concerned would face 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 (ibid.,

p. 37, para. 111).

The Commission notes that the expulsion in question is foreseen

to the Czech Republic, i.e. a State Party to the Convention which has

declared that it recognises the competence of the Commission to receive

individual petitions lodged under Article 25 (Art. 25) of the

Convention. Furthermore, the Commission considers that the general

situation in the Czech Republic is not such that an expulsion to that

country would in itself amount to a violation of the Convention or any

of its Protocols.

As regards the particular circumstances of the present case the

Commission does not consider that the applicants have sufficiently

substantiated their claim that they would risk upon their return to the

Czech Republic persecution or lack of protection against harassment as

a result of their affiliation to the minority of Roma gypsies. The

likelihood of treatment contrary to Article 3 (Art. 3) of the

Convention has not therefore been established.

In these circumstances, 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.

3. The applicants finally complain that after the dissolution of the

Czech and Slovak Federal Republic they could not, according to Article

1 of Law No. 40/1993, automatically acquire Czech citizenship. They

argue that according to Article 18 para. 1 of this law they can only

obtain Czech citizenship if they fulfil certain conditions relating to

residence and lack of criminal convictions.

The Commission has already found in its case-law that the right

to acquire a particular nationality is not, as such, covered by the

Convention or its Protocols (cf. No. 11278/84, Dec. 1.7.85, D.R. 43

pp. 216, 221).

However, even assuming that in the particular circumstances of

the case the impossibility for the applicants to acquire Czech

citizenship was capable of raising issues under Articles 3 and 14

(Art. 3, 14) of the Convention (cf. East African Asians v. the United

Kingdom, Report Comm. 14.12.73, D.R. 78 p. 5; Nos. 7823-7824/77, Dec.

6.7.1977, D.R. 11 p. 221), the Commission is not required to determine

whether the facts submitted by the applicants disclose any appearance

of a violation of these provisions. Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

after all domestic remedies have been exhausted, according to the

generally recognised rules of international law".

The Commission observes that the former Czechoslovak and the

present Czech and Slovak legal systems are, with few exceptions, based

on the principle of ius sanguinis: children acquire the citizenship of

their parents.

In the present case, all of the applicants are Slovak nationals.

This has been confirmed by the Ministry of the Interior of the Slovak

Republic as well as by the Embassy of the Czech Republic.

According to Article 18 para. 1 of Law No. 40/1993 on acquisition

and loss of the citizenship of the Czech Republic, citizens of the

Slovak Republic could choose citizenship of the Czech Republic by

making a declaration before 30 June 1994 provided that they had been

permanently and continuously resident on the territory of the Czech

Republic for at least two years, that they had a document of release

from citizenship of the Slovak Republic and had not had a criminal

record for the past five years.

The Commission observes that the applicants were invited by the

Czech authorities to opt for and acquire Czech citizenship under

Article 18 para. 1 of Law No. 40/1993. However, the applicants did not

reply to this invitation.

In these circumstances, the Commission finds that the applicants

have not satisfied the requirement as to the exhaustion of domestic

remedies laid down in Article 26 (Art. 26) of the Convention.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

H.C. KRÃœGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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SLEPCIK v. THE NETHERLANDS AND THE CZECH REPUBLIC

SLEPCIK v. THE NETHERLANDS AND THE CZECH REPUBLIC

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