Lexploria

Application No. 23877/94

by Abakoula ARGALALESS

against the Netherlands

The European Commission of Human Rights sitting in private on

17 October 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

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 3 February 1994

by Abakoula ARGALALESS against the Netherlands and registered on

14 April 1994 under file No. 23877/94;

Having regard to :

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

Commission;

- the observations submitted by the respondent Government on 29

July 1994 and the letter submitted by the applicant's

representative on 4 October 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Niger, born in 1968 and at present

residing at Heerlen, the Netherlands. Before the Commission he is

represented by Mr. C.H.M. Geraedts, a lawyer practising in Brunssum,

the Netherlands.

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

summarised as follows.

On 19 August 1991 the applicant requested asylum and a residence

permit in the Netherlands. In connection with this request he was heard

on 6 December 1991 by officials from the Ministry of Justice. The

applicant stated that, if he returned to Niger, he would probably be

persecuted, as he is a member of the Tuareg tribe in Niger and has

spent some time in Libya. He did not receive any military training in

Libya as a Tuareg resistance fighter opposing the Government of Niger,

but just worked on a farm. He was, however, unable to prove this.

On 27 January 1992 the Deputy Minister of Justice rejected the

applicant's request. As regards his request for asylum, it was held

that the fact that he belongs to the Tuareg tribe is in itself an

insufficient basis for considering that he has a well-founded fear of

persecution. As regards his request for a residence permit, the Deputy

Minister held that there were no compelling reasons of a humanitarian

character on the basis of which a residence permit could be granted.

On 4 March 1992 the applicant requested the Deputy Minister to

revise (herziening) the decision of 27 January 1992 and to grant

suspensive effect to this revision request. He received no reply.

Pursuant to Section 34 para. 2 of the Aliens Act

(Vreemdelingenwet) a request for review is assumed to be rejected when

the Deputy Minister does not decide on the request within three months.

On 9 June 1992 the applicant filed an appeal against the Deputy

Minister's fictitious negative decision with the Litigation Division

of the Council of State (Afdeling Rechtspraak van de Raad van State).

This appeal is still pending.

Since the proceedings before the Council of State have no

suspensive effect the applicant started summary proceedings (kort

geding) before the President of the Regional Court (Arrondissements-

rechtbank) of The Hague, requesting an injunction against his expulsion

pending the proceedings before the Council of State.

On 27 July 1992 the President of the Regional Court rejected this

request for an injunction. He considered that the applicant had failed

to substantiate the alleged risk of persecution on the basis of being

a Tuareg who had spent some time in Libya. The situation could be

different for Tuaregs who have in fact received military training in

Libya, but this was not the situation in the applicant's case since he

had only worked on an agricultural project. The President further

considered that no compelling reasons of a humanitarian character had

appeared on the basis of which the applicant should be allowed to stay

in the Netherlands.

On 4 January 1993 the applicant requested the United Nations High

Commissioner of Refugees (UNHCR) to inform him whether or not, in view

of his personal situation in combination with the general situation of

the Tuaregs in Niger, he could be regarded as a refugee and whether or

not his return to Niger could entail a risk to his life or safety.

By letter of 23 March 1993 the UNHCR replied that the findings

made in the course of an inquiry "show that due to the de facto

imposition of martial law in Northern Niger, [the applicant] has a

well-founded fear of persecution in Niger. The fact that [the

applicant] has been in Libya constitutes in our view an additional and

personal factor to establish his well-founded fear of persecution."

On the basis of this letter the applicant requested the Deputy

Minister of Justice to reconsider his application for asylum and a

residence permit. The Deputy Minister requested the Ministry of Foreign

Affairs to submit information as regards the situation in Niger.

Subsequently the Ministry of Foreign Affairs made an inquiry into the

situation in Niger.

In a report of 30 November 1993 the Ministry of Foreign Affairs

informed the Deputy Minister of Justice, inter alia, that Tuaregs in

Niger who have fled to neighbouring countries are considered by the

UNHCR as prima facie refugees, i.e. as persons who suddenly and in

large numbers find themselves in another country and might require

immediate material help. The Ministry further states that, since

11 March 1993, a truce is in force in Northern Niger between the

Government army and the rebelling Tuaregs united in the "Front de

Libération d'Aïr et d'Azawak" (FLAA), but that the last prolongation

of this truce on 10 September 1993 had only been signed by one of the

three groups united in the FLAA. As regards individual requests for

asylum by Tuaregs from Niger, the report stated that the UNHCR examines

them on an individual basis, whereas, apart from being a Tuareg,

additional information indicating persecution is also taken into

account in this examination.

A second set of summary proceedings instituted by the applicant

has been adjourned several times at the request of the Deputy Minister

of Justice pending the inquiry by the Ministry of Foreign Affairs.

By letter of 29 August 1994 the lawyer representing the

Government in the summary proceedings informed the applicant's lawyer

that, in view of the numerous summary proceedings still pending and the

general undesirability of summary proceedings pending too long, the

applicant had been granted permission to remain in the Netherlands

pending the appeal proceedings before the Council of State.

COMPLAINT

The applicant complains that his expulsion to Niger would be

contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 February 1994 and registered

on 14 April 1994.

On 20 May 1994 the Commission decided to apply Rule 36 of the

Commission's Rules of Procedure until 8 July 1994, to communicate the

application to the respondent Government and to invite them to submit

their observations on the admissibility and merits of the application.

On 6 July 1994 and 8 September 1994 the Commission decided to

prolong the application of Rule 36, on the latter occasion until

21 October 1994.

The Government's observations were submitted on 29 July 1994 and

transmitted to the applicant's representative for comments.

By letter of 4 October 1994 the applicant's representative

informed the Commission that the applicant did not wish to pursue his

application, as he had been granted permission to remain in the

Netherlands pending the appeal proceedings before the Council of State.

REASONS FOR THE DECISION

Having regard to Article 30 para. 1 (a) of the Convention, the

Commission notes that, by letter of 4 October 1994, the applicant's

lawyer informed the Commission that the applicant does not intend to

pursue his application, since he has been granted permission to stay

in the Netherlands pending the outcome of the appeal proceedings before

the Council of State. It finds no special circumstances regarding

respect for human rights as defined in the Convention which require

examination of the application to be continued, in accordance with

Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ARGALALESS v. THE NETHERLANDS

ARGALALESS v. THE NETHERLANDS

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