Lexploria

AS TO THE ADMISSIBILITY OF

Application Nos. 23895/94, 23987/94 and 23988/94

by M.F.K., S. EL ZEINA and A. SALEH

against the Netherlands

The European Commission of Human Rights sitting in private on

28 November 1994, the following members being present:

MM. C.A. NØRGAARD, President

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

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 28 March 1994 by

M.F.K. against the Netherlands and registered on 15 April 1994 under

file No. 23895/94; the application introduced on 20 April 1994 by Samer

EL ZEINA against the Netherlands and registered on 27 April 1994 under

file No. 23987/94; and the application introduced on 20 April 1994 by

Abdo SALEH against the Netherlands and registered on 27 April 1994

under file No. 23988/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

13 June 1994 and the observations in reply submitted by the

applicants on 13 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Lebanese nationals and they were all born in

1969. The first applicant is married to the third applicant's sister;

the second and third applicants' wives are sisters. The first applicant

resides at Goes, the Netherlands, and the second and third applicants

reside at Zetten, the Netherlands. Before the Commission they are

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

Netherlands.

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

summarised as follows.

The applicants lived in Sidon in the south of Lebanon and,

between 1983 and 1985, worked as bodyguard and driver for Ahmad Zaarour

who was adviser to the then President of the Lebanese Parliament, Kamal

Al-Assaad. Mr. Al-Assaad supported and actively sought a peace

agreement with Israel. The third applicant, who was a cousin of Mr.

Zaarour, worked full time for the latter, whereas the first and second

applicants only worked for him on a free lance basis.

After the Israeli troops had left Lebanon in 1985, the applicants

left Sidon for a few months because they feared reprisals from anti-

Israel militia which might consider them collaborators. The first and

third applicants went to stay with family in Beirut, the second

applicant went to family in Tripoli.

On his return to Sidon the first applicant was arrested and

detained by the Al-Shaab Al-Nassiri militia on suspicion of

collaboration with the Israelis. Following an intervention by the

militia's leader, Mustafa Saad, he was released after ten days. He

subsequently joined the Al-Shaab Al-Nassiri militia and worked for them

until 1990.

The second applicant also joined the anti-Israel Al-Shaab Al-

Nassiri militia on return to Sidon to avoid suspicion of collaboration.

He worked for them until 1987.

Because the third applicant is a shiite muslim and not a sunnite

muslim like the first and second applicants, he joined the Amal militia

to avoid suspicion of collaboration. However, although he worked for

them, they arrested him in 1986 and detained him for 22 days, during

which he was questioned about his collaboration with Israel and he was

allegedly tortured. He was released after an aunt had spoken on his

behalf to Amal leader Nabih Berri, whom she knew. He stopped working

for Amal in 1986.

In 1992 Kamal Al-Assaad returned to Lebanon, which he had left

in 1987, to take part in the parliamentary elections. At the request

of Ahmad Zaarour all three applicants actively supported Mr. Al-Assaad

in his election campaign in the south of Lebanon. The third applicant

printed pamphlets, pictures and banners and all three applicants were

involved in the publicity campaign. They also visited people, whose

names had been supplied by Mr. Zaarour, to persuade them to vote for

Mr. Al-Assaad and they helped organise transport for people in order

to enable them to attend election rallies.

In September 1992 Mr. Al-Assaad lost the elections and left for

France.

In December 1992 the third applicant's father told him that he

had been informed by a cousin, who was a bodyguard for the Hezbollah

leader, that he had seen the third applicant's name on a list of people

wanted by Hezbollah because of suspected collaboration with Israel. The

third applicant stayed at home for two weeks in his house in a village

outside Sidon, in an area where Hezbollah are not active. When nothing

happened he went back to work in Sidon but after two days he noticed

his car was being followed. After another warning from his cousin that

the situation was very serious, he went to Beirut.

The third applicant's brother arranged for him and his wife to

leave the country. On 22 April 1993, carrying forged passports, they

travelled by aeroplane to the Czech Republic.

On 28 April 1993 the second applicant was arrested by Hezbollah

and detained for two days, during which he was questioned about the

whereabouts of the third applicant, whom Hezbollah wanted to find and

kill. During questioning the second applicant was allegedly beaten. As

at that time he was unaware of the third applicant's flight, the second

applicant denied all knowledge of his whereabouts. Upon his release he

was given 24 hours to find the third applicant.

The second applicant went to the third applicant's parents where

he was informed of what had happened. The third applicant's brother

then arranged for the second applicant and his wife to leave the

country in the same way as the third applicant. They joined the third

applicant and his wife in the Czech Republic on 6 May 1993 and on

10 May 1993 they travelled together by car to the Netherlands and

applied for asylum and a residence permit on 16 June 1993.

At the time of the second applicant's arrest by Hezbollah the

first applicant was in Syria on a business trip. Upon his return on 16

May 1993 he learned that Hezbollah were looking for him and he decided

to leave the country. He first went to Beirut with his wife and after

also obtaining the assistance of the third applicant's brother, they

travelled to the Czech Republic on 28 May 1993. After a few days they

travelled to the Netherlands, where they arrived on 4 June 1993 and

where they applied for asylum and a residence permit on 21 June 1993.

The applicants and their wives were interviewed by officials of

the Ministry of Justice (Ministerie van Justitie). On 30 June 1993 the

first applicant's wife stated, inter alia, that before leaving Lebanon

she and her husband stayed in an area of Beirut where Hezbollah have

no influence.

On 12 July 1993 the Deputy Minister of Justice (Staatssecretaris

van Justitie) rejected the applicants' requests for asylum. The Deputy

Minister held, inter alia, that the first applicant could not be

considered a refugee, as it had not been shown that he was wanted by

Hezbollah, since, according to the second applicant's statements to the

Dutch authorities, Hezbollah were solely interested in finding the

third applicant. With regard to the second applicant the Deputy

Minister observed that Hezbollah could not have been seriously

interested in him, given that they released him after only two days.

The Deputy Minister found that the third applicant's statement to the

Dutch authorities concerning Hezbollah's interest in him lacked

credibility as it differed from his wife's statement.

With regard to all three applicants the Deputy Minister was of

the opinion that the situation in Lebanon was such that they could

reside in a part of the country where Hezbollah have no influence. The

Deputy Minister found no other basis on which the applicants could be

granted a Dutch residence permit.

On 6 August 1993 the applicants requested the Deputy Minister to

review (herziening) the decision of 12 July 1993. This request was

denied suspensive effect on 30 August 1993 for the second and third

applicants and on 6 September 1993 for the first applicant; the

applicants were ordered to leave the Netherlands within fourteen days.

The applicants subsequently started summary proceedings (kort

geding) before the President of the Regional Court

(Arrondissementsrechtbank) of The Hague, requesting an injunction on

their expulsion until their request for revision had been decided by

the Deputy Minister.

On 29 October 1993 the President of the Regional Court rejected

the second and third applicants' request for an injunction. He

considered the situation in Lebanon was not such that all Lebanese

should be regarded as refugees. The President noted that neither

applicant had been able to produce any kind of evidence to substantiate

their statements. With regard to the second applicant the President

observed that his activities during Mr. Al-Assaad's election campaign

had been fairly limited in duration as well as content.

On 24 November 1993 the President of the Regional Court also

rejected the first applicant's request for an injunction. The President

observed that the first applicant's fear was not based on objective

data but on hearsay, whereas his wife had stated to be unaware of the

fact that her husband was wanted by Hezbollah.

In all three summary proceedings the President of the Regional

Court considered that, even assuming the applicants were wanted by

Hezbollah, they could reside in a part of Lebanon where Hezbollah have

no influence. The President, finally, did not find it established that

the applicants, if expelled, would run a real risk of exposure to

treatment contrary to Article 3 of the Convention and found no other

reason for granting the requested injunctions.

In the first applicant's summary proceedings the President of the

Regional Court refused for procedural reasons to consider a message by

telefax dated 20 November 1993 by a Mr. Samir Zaarour, the son of Ahmad

Zaarour, who, until 1985, had worked for the Lebanese parliament with

its President Mr. Al-Assaad. Samir Zaarour was granted asylum in

Switzerland. The message contains information about the applicants'

activities at the time they were working for Mr. Al-Assaad in the

eighties and about the third applicant in particular, who was

apparently sent on secret missions by Samir Zaarour. The message also

expresses Samir Zaarour's conviction that the applicants would face

serious problems in Lebanon.

The applicants' appeals against the President's decisions are

still pending but have no suspensive effect on their expulsion.

The first applicant has also submitted an undated written

declaration by Mr. Mustafa Saad, stating that the first applicant has

left Lebanon for security and political reasons and his return is at

this moment impossible.

COMPLAINTS

The applicants complain that the Netherlands authorities, by

expelling them to Lebanon, would expose them to a serious risk of being

killed or ill-treated by Hezbollah because this organisation suspects

them of collaboration. In this respect they invoke Articles 2 and 3 of

the Convention.

The applicants further allege a breach of Articles 9 and 10 of

the Convention. They are of the opinion that they will not be able to

speak freely about their political opinions or about their opinions

regarding the civil war without serious consequences.

They finally submit that since their cases were not judged on the

merits in Dutch summary proceedings and since they are not allowed to

await the outcome in the Netherlands of either their asylum proceedings

or their pending appeal against the refusal of an injunction, they are

denied an effective remedy within the meaning of Article 13 in

conjunction with Article 6 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 28 March and 20 April 1994

respectively and registered on 15 April and 27 April 1994 respectively.

In the case of the first applicant, the Commission decided on 15

April 1994 to apply Rule 36 of the Commission's Rules of Procedure

until the end of its next session and the application was subsequently

communicated to the Government, inviting them to submit their

observations on the admissibility and merits of the application. On 27

April 1994 the President of the Commission decided to apply Rule 36 and

to communicate the applications with regard to the second and third

applicants.

The application of Rule 36 in the cases of all three applicants

was prolonged on 19 May, 6 July, 8 September and 21 October 1994.

The Government's submissions were submitted on 13 June 1994 and

the applicants' observations in reply were submitted, after an

extension of the time-limit, on 13 September 1994.

THE LAW

1. The applicants complain that their expulsion to Lebanon amounts

to inhuman or degrading treatment 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."

They also invoke Article 2 para. 1 (Art. 2-1) of the Convention

which provides:

"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."

The Government submit that the applicants have been completely

unable to substantiate their claim that upon return to Lebanon they

would be subjected to torture or to inhuman or degrading treatment.

They further submit, following an investigation into the situation in

Lebanon by the Netherlands diplomatic mission concerned and a

comparison made by the Ministry of Foreign Affairs (Ministerie van

Buitenlandse Zaken) of the findings of this investigation with other

information derived from both governmental and non-governmental

sources, that it appears that there are alternative places where the

applicants could settle in Lebanon, where the Lebanese Government could

offer effective protection from any illegal action on the part of

Hezbollah.

The applicants submit in the first place that it cannot be

required of refugees to provide evidence of an alleged fear of

persecution. They are of the opinion that their motives for flight are

consistent and that they have made their fear of persecution

sufficiently plausible. In this respect they refer to written

statements made on their behalf by Lebanese politicians.

The applicants deny that it would be possible for them to settle

elsewhere in Lebanon. They refer to a letter of Amnesty International

of 15 March 1994, in which it is stated:

"Hezbollah are much more than a resistance movement in the south

of the country. They are also an important political force in

Lebanon and have at their disposal a semi-governmental civil

service in social, educational and legal fields. In late August

1992 Hezbollah took part in parliamentary elections resulting in

the Hezbollah-faction becoming the largest faction in the

parliament. [...] Hezbollah have always been guilty of serious

violations of human rights. Persons considered deserters by

Hezbollah therefore run the risk of becoming a victim of arrest,

torture and execution."

The Commission has constantly held that the right of an alien to

reside in a particular country is not as such guaranteed by the

Convention. However, expulsion may in exceptional circumstances involve

a violation of the Convention, for example where there is a serious

fear of treatment contrary to Articles 2 and 3 (Art. 2, 3) of the

Convention in the country to which the person is to be expelled (cf.

No. 10564/83, Dec. 10.12.84, D.R. 40 p. 262; mutatis mutandis Eur.

Court H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 32

ff., para. 81 ff.).

In the present case the applicants have, in the first place,

referred to their position as persons regarded as collaborators with

Israel by Hezbollah. They claim that those suspected of collaboration

face arrest, torture and/or execution by Hezbollah.

The Commission recalls that the mere possibility of ill-treatment

on account of the unsettled general situation in a country is in itself

insufficient to give rise to a breach of Article 3 (Art. 3) of the

Convention (cf. Eur. Court. H.R., Vilvarajah and others judgment of

30 October 1991, Series A no. 215, p. 37, para. 111).

The Commission observes that the applicants' allegation with

regard to their being wanted by Hezbollah has remained unsubstantiated.

Although the Commission can in general agree with the applicants that

people threatened with expulsion should not be required to provide

absolute proof that they, if expelled, will be exposed to a treatment

contrary to Articles 2 and 3 (Art. 2, 3) of the Convention, it finds

that their submissions do not show substantial grounds for believing

that they would face a real risk of treatment contrary to Articles 2

and 3 (Art. 2, 3) of the Convention.

In this respect the Commission notes that the written statements

made on behalf of the applicants by Lebanese politicians are very

vague. Moreover, Mr. Samir Zaarour appears to have left Lebanon in or

shortly after 1985, whereas the applicants' alleged problems stem

mainly from their activities during Mr. Al-Assaad's election campaign

in 1992.

It also appears that the first applicant has had no indication

of being wanted by Hezbollah other than his assumption that if the

third applicant appeared on a Hezbollah list of suspected collaborators

then the same would apply to him. With regard to the second applicant

the Commission recalls that he was released after two days of detention

by Hezbollah, allegedly on the condition that he would lead them to the

third applicant. It appears therefore unlikely that Hezbollah are

directly interested in the second applicant.

The Commission observes that the third applicant seems to have

been the politically most active of the three applicants. His name is

the only one to have allegedly been seen to feature on a Hezbollah list

of suspected collaborators. However, the Commission fails to see why

the applicants cannot settle in a part of Lebanon where Hezbollah have

no influence. In this respect the Commission has had regard to the

statement of the first applicant's wife to the Dutch authorities that

she and her husband stayed in Beirut for a while in an area where

Hezbollah have no influence and to the Government's submission that an

investigation has indicated that there are such areas. This conclusion

is not disputed in the letter of Amnesty International of 15 March 1994

submitted by the applicants.

In these circumstances the Commission considers that the grounds

the applicants have presented in support of their claim are not

sufficient for the conclusion that their expulsion to Lebanon would

constitute a violation of Article 3 (Art. 3) of the Convention.

The Commission further finds there is no appearance of a

violation of Article 2 (Art. 2) of the Convention.

The Commission, therefore, finds that the applications, in this

respect, are manifestly ill-founded within the meaning of Article 27

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

2. The applicants further complain that their expulsion to Lebanon

would violate their rights under Articles 9 and 10 (Art. 9, 10) of the

Convention, as in Lebanon they cannot freely express their political

opinions.

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

freedom of thought, conscience and religion. Article 10 (Art. 10) of

the Convention guarantees the right to freedom of expression.

The Commission is of the opinion that the applicants' expulsion

raises no issue under these provisions.

It follows that this part of the application is also manifestly

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

Convention.

3. The applicants finally complain that they have been denied an

effective remedy within the meaning of Article 13 in conjunction with

Article 6 (Art. 13+6) of the Convention.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

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

(...) everyone is entitled to a fair and public hearing (...) by

an independent and impartial tribunal established by law.

(...)"

Article 13 (Art. 13) of the Convention, in so far as relevant,

provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority (...)."

As regards Article 6 (Art. 6) of the Convention the Commission

recalls that, according to its constant case-law, proceedings

concerning political asylum, a request for a residence permit or

expulsion of an alien do not involve a determination of civil rights

and obligations or of a criminal charge (cf. No. 13162/87, Dec.

9.11.87, D.R. 54 p. 211; No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205; No.

9990/82, Dec. 15.5.84, D.R. 39 p. 119).

The Commission finds, therefore, that this complaint must be

rejected as being incompatible ratione materiae with the Convention

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

According to the constant case-law of the Convention organs it

is necessary for the applicability of Article 13 (Art. 13) of the

Convention to have an arguable claim in terms of the Convention

(Eur. Court. H.R., Boyle and Rice judgment of 27 April 1988, Series A

no. 131, para. 52). The Commission considers that the applicants cannot

be said to have had an arguable claim under Article 6 (Art. 6) of the

Convention and, in any case, noting that the President of the Regional

Court in summary proceedings had regard to their complaint under

Articles 2 and 3 (Art. 2, 3) of the Convention, finds that these

summary proceedings constitute an effective remedy within the meaning

of Article 13 (Art. 13) of the Convention.

It follows from the above that this complaint 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,

DECIDES TO JOIN APPLICATION Nos. 23895/94, 23987/94 AND

23988/94,

and, by a majority,

DECLARES THE APPLICATIONS INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M.F.K., EL ZEINA AND SALEH v. THE NETHERLANDS

M.F.K., EL ZEINA AND SALEH v. THE NETHERLANDS