Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21350/93

by Teteh Ankrah SOMADO

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 October 1993, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Mr. K. ROGGE, 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 6 October 1992 by

Teteh Ankrah SOMADO against the Netherlands and registered on

9 February 1993 under file No. 21350/93 ;

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 Togolese national, born in 1963 and currently

in hiding in the Netherlands. Before the Commission he is represented

by J.Th.A. Bos, a lawyer practising in Utrecht, the Netherlands.

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

summarised as follows.

The applicant's father, who was the village chief of Z., died in

1984 allegedly as a result of a curse ("juju"). The applicant's elder

brother inherited the function of village chief. Since he wished to

finish his studies, an uncle of the applicant became interim village

chief. When in 1985 the applicant's brother claimed his right to become

village chief, he allegedly received several death threats from his

uncle and his followers and in 1986 left Togo. At present he is

residing in Japan, where he has obtained the status of refugee. Since

his brother's departure the applicant was the lawful heir to his

father's position. As from 1989 the applicant has allegedly been

pressed on several occasions by the village elders to claim his right

to become village chief and threatened by his uncle if he would do so.

The applicant consistently refused to become village chief and in 1990,

holding a valid passport issued in April 1989, he left Togo.

On 24 December 1990 the applicant arrived in Brussels, Belgium,

and on 25 December 1990 he travelled to the Netherlands, where on 27

December 1990 he requested the status of refugee and a residence

permit.

On 23 April 1992 the applicant was heard by a contact officer of

the Ministry of Justice (contactambtenaar van het Ministerie van

Justitie). By decision of 12 May 1992 the Deputy Minister of Justice

(Staatssecretaris van Justitie) rejected the applicant's requests,

considering the applicant did not meet the requirements for obtaining

the status of refugee and that no circumstances had appeared on the

basis of which the applicant could qualify for a residence permit on

humanitarian grounds.

By letter of 1 July 1992 the applicant's lawyer requested the

Deputy Minister of Justice to review (herziening) the decision of 12

May 1992. On 22 July 1992 the applicant was informed that the request

for a review was denied suspensive effect in respect of his expulsion

from the Netherlands. The review proceedings are still pending.

The applicant's request for a stay of his expulsion was refused

on 24 September 1992 by the President of the Regional Court

(Arrondissementsrechtbank) of The Hague in injunction proceedings (kort

geding). The President considered that there was no reasonable doubt

that the applicant did not meet the requirements for the status of

refugee. Although the President did not doubt the applicant's

allegations, he considered that there were no compelling humanitarian

reasons opposing the applicant's expulsion having regard to the fact

that the applicant never had expressed the intention to become village

chief and that it was not impossible to remain outside the village

elders' sphere of influence. The applicant's appeal against this

decision is still pending.

By letter of 12 March 1993 the applicant's lawyer requested the

Dutch authorities to stay the applicant's expulsion in view of the

current unstable political situation in Togo. In this letter the

applicant's representative referred to a decision of 15 January 1993

in injunction proceedings in a similar case where the President of the

Regional Court had decided to adjourn his decision pending the

submission by the Dutch authorities of additional information, from

which it should appear that no violation of Article 3 of the Convention

would occur if that person would be expelled to Togo.

COMPLAINT

The applicant complains that the Netherlands authorities by

expelling him to Togo expose him to a treatment contrary to Article 3

of the Convention.

THE LAW

The applicant complains that his expulsion to Togo will expose

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

The Commission does not find it necessary to examine whether the

applicant has complied with the requirements of Article 26 (Art. 26)

of the Convention, as the application is in any event manifestly ill-

founded for the following reasons.

The Commission recalls its constant case-law according to which

no right of an alien to enter or to reside in a particular country, nor

a right not to be expelled from a particular country is as such

guaranteed by the Convention (cf. No. 7816/77, Dec. 19.5.77, D.R. 9 p.

219). However, the expulsion of a person to a country where there are

reasons to believe he will be subjected to a treatment contrary to

Article 3 (Art. 3) of the Convention may raise an issue under that

Article. This may be so even if the danger does not emanate from public

authorities for whom the receiving State is responsible (No. 12461/86,

Dec. 10.12.86, D.R. 51 p. 258).

The Commission notes that the current political situation in Togo

may be regarded as unstable. However, in respect of the general

situation in Togo, the applicant has not substantiated in which respect

his personal situation is any worse than that of the generality of the

Togolese population (cf. mutatis mutandis, Eur. Court H.R. Vilvarajah

and Others judgment of 30 October 1991, Series A no 215, p. 37, para.

111). Concerning his personal situation in respect of the pressure

exercised by his uncle and the village elders, the Commission recalls

that to fall within the scope of Article 3 (Art. 3) of the Convention,

ill-treatment must attain a minimum level of severity (cf. No.

10142/82, Dec, 8.7.85, D.R. 42 p. 86). Noting that the applicant does

not allege that, when expelled, he will be compelled to take up

residence in his village, the Commission finds that the mere

possibility of being exposed in his village to a certain degree of

pressure by either his uncle or the village elders is, in the

circumstances of the present case, not in itself sufficient to raise

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

It follows that the application is manifestly ill-founded within

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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SOMADO v. THE NETHERLANDS

SOMADO v. THE NETHERLANDS

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