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AS TO THE ADMISSIBILITY OF

Application No. 16304/90

by K., S. and H.

against the Netherlands

The European Commission of Human Rights sitting in private on 7

December 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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 13 March 1990 by

K., S. and H. against the Netherlands and registered on 16 March 1990

under file No. 16304/90;

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 are two brothers and their sister. They are

Jordanian nationals of Palestinian origin, born in 1963, 1960 and 1965

respectively. The first and third applicants presently reside at

IJsselstein, the Netherlands. At the time of the introduction of the

application, the second applicant was staying in Koudekerke. Before

the Commission they are represented by Mr. W.A.Venema, a lawyer

practising in Rotterdam.

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

summarised as follows.

In 1987, while in Jordan, the first applicant, Khader, joined the

Popular Front for the Liberation of Palestine (PFLP), an illegal

political organisation. As part of a cell of three persons, his

activities mainly consisted of distributing pamphlets and transporting

arms. He has been arrested several times and was allegedly ill-treated

by the Jordanian intelligence services on those occasions.

On 27 December 1988 he fled Jordan with the help of a high

ranking official of the Jordanian General Intelligence Department

(GID). On 11 January 1989, after his arrival in the Netherlands, he

filed a request for asylum (toelating als vluchteling) and for a

residence permit (verblijfsvergunning). By decision of 18 April 1989,

the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected

both requests holding, inter alia, that the applicant's membership of

the PFLP was open to doubt, that the applicant had made contradictory

statements as to his asylum motives and that his problems in Jordan

were not such as to entitle him to being granted the status of refugee.

On 18 May 1989 the applicant requested a review (herziening) of this

decision. The Deputy Minister of Justice denied suspensive effect to

his request.

On 3 November 1989 the first applicant instituted summary

proceedings (kort geding) with the President of the Regional Court

(Arrondissementsrechtbank) of The Hague, who rejected his request on

12 March 1990 finding the applicant's statements inconsistent. The

President also noted that the applicant left Jordan through the Amman

airport with a valid passport bearing his own name.

On 21 March 1990 the first applicant appealed against this

decision to the Court of Appeal (Gerechtshof) of The Hague which

confirmed the President's decision on 23 January 1992, stating, inter

alia, that it is not plausible that the contradictions in the

applicant's statements were due to the alleged problems in

communicating with the interpreter. It also noted that the general

human rights situation in Jordan had improved and that the PFLP was

represented in the Jordanian Parliament. On 5 March 1992 the applicant

filed a plea of nullity with the Supreme Court (Hoge Raad) which has

not taken a decision yet.

Throughout the proceedings, the first applicant submitted that

the GID was also active in the Netherlands and that he had indirectly

been threatened with death by them through his brother-in-law, the

third applicant's husband (see below). However, the different

instances dismissed the argument as being unfounded.

On 9 March 1989 he fled with his sister, the third applicant, and

her children to IJsselstein, where they have been living since, as they

were allegedly threatened by her husband and by the GID.

The second applicant, Suleiman, entered the Netherlands on 14

April 1988. After protracted proceedings to obtain a residence permit,

he was eventually granted one on 20 December 1990 in order to live with

his Dutch partner.

The third applicant, Subhieh, entered the Netherlands with her

husband and their son on 30 July 1988. Her husband works for the GID

and the three applicants suspect him of checking them and allege that

he has threatened them with death. She unsuccessfully instituted

proceedings to obtain a residence permit. On 19 March 1990 her

marriage was dissolved. On 17 December 1990 she was granted a

residence permit on humanitarian grounds.

On 25 January 1991 the applicants' representative informed the

Commission that the second and third applicants wish to withdraw their

application as both had obtained a residence permit.

COMPLAINTS

1. The applicants originally complained that their impending

expulsion to Jordan would be contrary to Article 3 of the Convention

since they would be exposed to ill-treatment. The first applicant

complains in particular about the risk of ill-treatment in view of his

involvement with the PFLP.

2. He also complains that his expulsion would constitute an

unjustified interference with the family life he has been leading since

March 1989 with his sister, the third applicant, and her children who

consider him as their father.

THE LAW

1. The applicants originally complained that their impending

expulsion to Jordan would expose them to ill-treatment contrary to

Article 3 (Art. 3) of the Convention.

The Commission notes that the second and third applicants have

been granted a residence permit on 20 and 17 December 1990. As the

threat of expulsion has ceased to exist, the Commission considers that

they are no longer victims within the meaning of Article 25 (Art. 25)

of the Convention of the alleged violation of Article 3 (Art. 3).

As far as the first applicant is concerned, the Commission

recalls at the outset that Contracting States have the right, as a

matter of well-established international law and subject to their

treaty obligations including Article 3 (Art. 3), to control the entry,

residence and expulsion of aliens and that the right to political

asylum is not protected by either the Convention or its Protocols (Eur.

Court H.R., Vilvarajah and others judgment of 30 October 1991, Series

A no. 215, p. 34, para. 102).

However, the decision by a Contracting State to expel an

individual can, in certain circumstances, prove to be in breach of the

Convention and particularly of Article 3 (Art. 3), when there are

serious reasons to believe that he could be subjected to treatment

prohibited by the said Article 3 (Art. 3) in the State to which he

would be sent (see e.g. No. 6315/73, Dec. 30.9.74, D.R. 1 p. 73; No.

7011/75, Dec. 3.10.75, D.R. 4 p. 215; No. 12122/86, Dec. 16.10.86, D.R.

50 p. 268; Eur. Court H.R. Cruz Varas and others judgment of 20 March

1991, Series A no. 201, paras. 69-70).

The Commission observes in the first place that, thoughout the

domestic proceedings, the Dutch authorities have dismissed the

applicant's allegations of possible ill-treatment on the ground that

his declarations lacked credibility, in particular concerning his

involvement with the PFLP which in the meantime has been represented

in the Jordanian Parliament.

After examination of the facts and the documents as submitted by

the applicant, the Commission finds that he has failed to show that he

faces a real risk of ill-treatment if expelled to Jordan. No

substantial grounds warranting the fear of ill-treatment having been

established, the Commission concludes that the applicant's complaint

under Article 3 (Art. 3) is unsubstantiated.

It follows that this complaint must be rejected as being

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

(Art. 27-2) of the Convention.

2. The first applicant further complains that his impending

expulsion to Jordan will unjustly interfere with the family life he has

been leading since March 1989 with his sister, the third applicant, and

her children who consider him as their father. He invokes Article 8

(Art. 8) of the Convention which guarantees to "everyone ... the right

to respect for his ... family life".

The Commission considers that the right to respect for family

life is not confined to "legitimate" families. It refers in this

connection to its own case-law and to the judgment given by the

European Court of Human Rights in the Marckx case (Eur. Court H.R.,

Marckx judgment of 13 June 1979, Series A no. 31).

It also recalls that, in order to ascertain whether in a given

case it is appropriate to speak of "family life" within the meaning of

Article 8 (Art. 8), it has considered not only whether the persons

concerned were related but also whether it was in fact possible to

point to such a link as can "be considered to establish family life

within the meaning of Article 8 (Art. 8)" (No. 11418/85, Dec. 14.5.86,

D.R. 47 pp. 243, 256).

In the present case, the Commission finds that, although there

is a family link between the first and the third applicant in the

biological sense of the term, their relationship is not such as to fall

within the ambit of Article 8 (Art. 8) of the Convention. It is

sufficient to note in this respect that there is no indication of any

dependency between the first and the third applicant other than the

normal emotional ties between a brother and a sister.

As to the allegation that the third applicant's children consider

the first applicant as their father since the divorce of their parents,

the first applicant has failed to substantiate this claim.

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

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

For these reasons, the Commission by a majority,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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K., S. AND H. v. THE NETHERLANDS

K., S. AND H. v. THE NETHERLANDS

LEXI