Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25983/94

by A.R. D.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

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 9 November 1994

by A.R. D. against the Netherlands and registered on 19 December 1994

under file No. 25983/94;

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

1971, and at present residing in the Netherlands. Before the Commission

he is represented by Mrs. 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.

A. Particular circumstances of the case

The applicant submits that he left Turkey because he was being

prosecuted for having been involved with the PKK (Kurdish Workers'

Party - an armed separatist movement). He arrived in the Netherlands

in the night of 27 September 1994 and did not report himself to the

police until 3 October 1994 since he was not aware of asylum

proceedings in the Netherlands. He was subsequently sent to a temporary

refuge for asylum seekers and, on 16 October 1994, he was taken to a

registration centre (aanmeldcentrum) for asylum seekers which had

opened on that day.

In the registration centre the applicant filed requests for

asylum and a residence permit for humanitarian reasons. That same day,

i.e. 16 October 1994, he had a preliminary and an extended interview

(eerste en nader gehoor) with an official of the Ministry of Justice

(contactambtenaar van het Ministerie van Justitie). He submits that

this official was not interested in the indictment of the Erzincan

State Security Court which he had brought with him as evidence of his

prosecution in Turkey.

On 17 October 1994, the Deputy Minister of Justice

(Staatssecretaris van Justitie) declared the applicant's request for

asylum inadmissible since, despite the fact that he was not in

possession of a passport, he had failed to report himself to the

authorities without delay ("onverwijld"). The Deputy Minister found

furthermore that in any case there could not reasonably be any doubt

that the applicant was not a refugee. The applicant's request for a

residence permit for humanitarian reasons was rejected in the same

decision.

When the applicant was handed this decision, also on

17 October 1994, he was informed that he had one hour to request an

interim measure (voorlopige voorziening) from the President of The

Hague Regional Court (Arrondissementsrechtbank) in order to suspend his

expulsion pending an objection against the decision. The applicant

submits that he was referred to a lawyer who was present in the

registration centre but who told him he was unable to file a request

for an interim measure. According to the applicant, the organisations

offering legal assistance in the registration centre were not yet fully

operational on the day the centre opened.

Later that same day the applicant and a compatriot were taken by

military police to the border zone with Belgium where they were told

to get out of the car. The applicant returned to The Hague where he

found a lawyer on 27 October 1994. This lawyer immediately requested

an interim measure from the President of The Hague Regional Court and

filed an objection against the Deputy Minister's decision of

17 October 1994.

On 10 November 1994, the Deputy Minister decided that the

applicant would be allowed to remain in the Netherlands pending the

objection proceedings and the request for an interim measure was

subsequently withdrawn.

As the Deputy Minister had not decided on the objection within

the statutory period of time, the applicant filed an appeal on

24 May 1995 with The Hague Regional Court against the Deputy Minister's

fictitious rejection (fictieve weigering) of the objection. This appeal

is currently still pending. The Deputy Minister informed the applicant

on 13 December 1995 that following the appeal to the Regional Court his

expulsion had been suspended.

B. Relevant domestic law and practice

With the opening of two registration centres for asylum seekers

in the third quarter of 1994, a new asylum procedure came into force

in the Netherlands. Asylum seekers whose requests for asylum are

considered manifestly ill-founded or inadmissible will be handed a

decision rejecting their requests within 24 hours. They may, within

four weeks, file an objection or appeal against this decision but this

will not suspend the expulsion unless they succeed in obtaining an

interim measure from The Hague Regional Court. This category of asylum

seekers is given one hour to apply for an interim measure.

The grounds for declaring an asylum request manifestly ill-

founded or inadmissible are contained in Sections 15 b and c of the

Immigration Act (Vreemdelingenwet). Section 15 b para. 1 (f) provides

that a request for asylum is inadmissible if a foreigner is not in

possession of documents required for entrance into the Netherlands,

unless he reports himself without delay to a civil servant charged with

border control or the surveillance of foreigners and he informs this

civil servant that he has a well-founded fear of persecution.

COMPLAINTS

The applicant complains that his expulsion to Turkey would expose

him to a real risk of receiving treatment contrary to Articles 2 and

3 of the Convention. He also invokes Article 3 of the Convention in

relation to his expulsion to Belgium, a country where his entrance was

not guaranteed.

The applicant further complains of the way in which his request

for asylum was dealt with. He alleges in particular that, unlike asylum

seekers who filed their requests prior to 16 October 1994, he was not

given any time to prepare for the interviews with the Ministry of

Justice and there was not sufficient legal assistance available after

his requests had been rejected. Furthermore, the official conducting

the interview was not interested in a document which supported his

asylum claims. The applicant invokes Article 6 of the Convention taken

alone and in conjunction with Articles 13 and 14.

THE LAW

1. The applicant complains that his expulsion to Turkey would be,

and his expulsion to Belgium was, contrary to Article 3 (Art. 3) of the

Convention, which reads:

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

treatment or punishment."

In respect of his expulsion to Turkey he also invokes Article 2

(Art. 2) of the Convention, which, insofar as relevant, provides:

"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. ..."

(a) As regards the applicant's expulsion to Turkey, the Commission

notes that the Deputy Minister of Justice decided to allow the

applicant to remain in the Netherlands pending the objection

proceedings. Furthermore, following the appeal lodged with The Hague

Regional Court against the Deputy Minister's fictitious rejection of

the applicant's objection, the applicant has been informed that his

expulsion has been suspended.

The Commission concludes that in the particular circumstances of

the present application the applicant is not able to claim to be a

victim, within the meaning of Article 25 para. 1 (Art. 25-1) of the

Convention, of the violations of the Convention which he has alleged.

It follows that this part of the application is manifestly ill-founded

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

(b) In respect of the applicant's expulsion to Belgium, the

Commission recalls that it has previously held that the repeated

expulsion of a person whose identity or nationality cannot be

established to a country where it is not certain that he will be

admitted may raise problems under Article 3 (Art. 3) of the Convention.

The same is the case where a foreigner is repeatedly expelled, over a

long period of time, and no State takes steps to regularise his

position (cf. No. 10798/84, Dec. 5.3.86, D.R. 46, p. 112).

The Commission notes that in the present case the applicant was

left in the border zone between the Netherlands and Belgium and that

there was no guarantee that the applicant would be allowed to enter the

latter country. However, having assessed all the circumstances of the

present case, the Commission cannot find that the action taken by the

Dutch authorities amounted to ill-treatment which attained such a level

of severity as to fall within the scope of Article 3 (Art. 3) of the

Convention.

It follows, therefore, that this aspect of the application is

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

(Art. 27-2) of the Convention.

2. The applicant also complains that the proceedings whereby his

requests for asylum and a residence permit for humanitarian reasons

were determined did not meet the requirements of Article 6 (Art. 6) of

the Convention.

This provision, insofar as relevant, stipulates:

"1. 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 that it has constantly held that the

procedures followed by public authorities to determine whether a

foreigner 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. 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 applicant further invokes Article 13 (Art. 13) of the

Convention and contends that he had no effective remedy before a

domestic authority for the violation which he alleges of Article 6

(Art. 6) of the Convention. 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 has interpreted this provision as requiring the

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

make an arguable claim that their rights under the Convention have been

violated. 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 applicant has no such

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 applicant finally complains of a violation of Article 14 in

conjunction with Article 6 (Art. 14+6) of the Convention in that he was

treated differently from other asylum seekers. Article 14 (Art. 14),

insofar as relevant, provides:

"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 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 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 H.R., Karlheinz Schmidt judgment of

18 July 1994, Series A no. 291 B, p. 32, para. 22).

Given that the Commission has found that the 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 (Art. 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.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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A.R. D. v. THE NETHERLANDS

A.R. D. v. THE NETHERLANDS

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