Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14401/88

by A.

and K.

against Turkey

The European Commission of Human Rights sitting in private

on 12 January 1991, 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. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 27 November 1988

by A. and K. against the Netherlands and registered on 28 November

1988 under file No. 14401/88;

Having regard to:

- the observations submitted by the respondent Government on

17 February 1989 and the observations in reply submitted

by the applicants' representative on 27 April and 25 June

1990;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The two applicants are Iranian citizens, born at Teheran in

Iran in 1962 and 1968, respectively. The first applicant is a

computer scientist and the second applicant has no profession. In the

proceedings before the Commission they are represented by Mr. J. Groen,

a lawyer practising in The Hague, the Netherlands.

I.

According to the submissions made on behalf of the first

applicant before the Commission he has been politically active for a

secular political party in Iran since before the Islamic Revolution.

Between 1978 and 1981 he represented this party on the student's

committee of the University of Teheran, where he was studying. After

the religious purge of 1981, he continued to be politically active

outside the University. He has been arrested on one occasion. In

1984 he was readmitted to the University.

In 1987, after he graduated, the first applicant made several

attempts to flee Iran in order to avoid performing his military

service. He wished to join the rest of his family, which had been

granted asylum in the Netherlands many years before. In Teheran, he

was in hiding, together with the second applicant, when he discovered

that he was being sought by the authorities and that he had apparently

been betrayed by a friend.

According to the submissions made on behalf of the second

applicant before the Commission, as a secondary school student, he

became active for the illegal political party of exiled former Prime

Minister Dr. Shahpour Bakhtiar. In November 1987, a private party

which the second applicant was attending was raided by the authorities

(the Pasdaran) and he was arrested. He received 40 lashings, his hair

was shaven off, and he was informed that he would be imprisoned if

caught again within two years.

It appears that he was later betrayed by a friend and arrested.

He received the same punishment as after his first arrest. The

authorities apparently had not realised that he had been arrested

before. As he was not admitted to the University for political

reasons and would have to perform his military service, during which,

it is alleged, he would be forced to fight against "Kurdish rebels",

he decided to flee Iran.

II.

The applicants made their way, together with several other

Iranians, across the Turkish border to Vann on 28 June or 7 July 1988.

While en route for Istanbul, the vehicle in which they were hidden was

stopped by Turkish police near Ankara, because it contained contraband

Iranian caviar. The applicants were arrested for smuggling on 8 or

14 July 1988. They were allegedly put in a bare cell, and not given

food or drink for six days, during which they were also beaten and

interrogated daily. The first applicant could contact his brother, a

naturalised Dutch citizen, who came to Ankara and arranged for a legal

representative.

On 2 September 1988, the applicant were released from custody

after paying a bail of 500.000 Turkish Lira. They were informed that

they would be allowed to remain in Turkey until 11 October 1988, when

they were to give evidence in the caviar smuggling case, only if the

UNHCR (United Nations High Commissioner for Refugees) granted them

refugee status and they found a third country willing to take them in.

The Turkish legal representative of the applicants assisted

them in contacting the Netherlands Embassy, with a view to arranging

asylum in the Netherlands, where they have relatives. Earlier, the

first applicant's relatives in the Netherlands had arranged with the

present representative that he would assist in expediting the asylum

request before the Dutch authorities.

Communications from the Dutch authorities suggested that the

applicants' chances of being granted asylum were good. However, the

Dutch authorities insisted on not taking a decision until their

selection committee had been to Turkey to interview the applicants.

Furthermore, it appeared that the Turkish authorities were prepared to

tolerate the presence of the applicants in Turkey until the

Netherlands would grant them asylum in December.

III.

On 25 November 1988, while on their weekly visit to the

Turkish Police Headquarters to register, the applicants were arrested.

Their arrest was apparently based on the suspicion that they were

engaging in illegal activities on Turkish soil. The Government cite

false passports and identity documents which were found in the

applicants' lodgings after their arrest. Another Iranian refugee, who

was arrested with the applicants, escaped and contacted the

applicants' relatives in the Netherlands, as well as the

representative of the UNHCR in Ankara.

After their arrest, the applicants were sent to Dogubayazit,

near the border with Iran. On 26 November 1988, apparently together

with seven other Iranian refugees, they were released from Turkish

custody and they returned to Iran under circumstances which are in

dispute between the parties (see below).

COMPLAINTS

1. The applicants' representative, who, when introducing the

application, believed that the applicants were still in Turkey,

complained of their imminent expulsion to Iran. He alleged that due

to their political activities in Iran, to their evasion of military

service, and to their having fled the country, the Iranian authorities

would immediately imprison them, torture them and perhaps execute

them. He submitted that Iran has a practice of summarily executing

citizens who have attempted to flee the country and that by expelling

them to Iran, Turkey would expose them to certain torture or death,

which constitutes inhuman treatment on the part of Turkey. He invoked

Article 3 of the Convention.

The applicants' representative submitted that, after entering

Turkey, the applicants had informed the Turkish authorities of their

reasons for fleeing Iran and of the persecution to which they might be

exposed there. He further submitted that according to a letter from

the Netherlands Embassy in Ankara to him, the applicants had been

granted refugee status in Turkey on 5 September 1988.

The applicants' representative subsequently alleged that, when

on 26 November 1988 the applicants were sent back together with seven

other Iranian refugees to the border, two representatives of the UNCHR

in Ankara followed them to Dogubayazit where they pointed out to the

local authorities that the nine Iranians were refugees recognised by

the UNHCR. Subsequently, these two representatives witnessed that the

nine Iranians were handed over by the Turkish authorities directly

into the hands of Iranian authorities.

The applicants' representative further submitted that these

nine refugees were immediately arrested, and seven of the nine were

summarily executed. Allegedly, because relatives of the applicants had

been alerted to the expulsion, they had travelled to the location and,

by means of substantial bribes, succeeded in preventing the

applicants' executions. Subsequently, after family members had ceded

property to the Iranian State, both applicants were ordered by Iranian

authorities to enlist in the army for five years. They have meanwhile

been sent to serve in Iranian Kurdestan.

2. The applicants' representative also complained that in respect

of the violation of Article 3 of the Convention there was no effective

remedy open to the applicants in Turkey, also because of the

suddenness and speed of their expulsion, which furthermore took place

during a weekend. He invoked Article 13 of the Convention in this

respect.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 November 1988 and

registered on 28 November 1988.

On 27 November 1988 the President made an indication under

Rule 36 to the respondent Government, having found that it was

desirable not to expel the applicants to Iran until the Commission

could examine the case.

On 5 December 1988 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application. The Commission also decided to prolong the indication

under Rule 36 of the Rules of Procedure.

On 20 January 1989 the Commission again decided to prolong the

indication under Rule 36 of the Rules of Procedure.

The Government's observations were submitted on 17 February

1989. On 17 March 1989 the Commission decided not to prolong the

indication under Rule 36 of the Rules of Procedure.

The applicants' observations in reply were submitted on

13 April 1989.

On 2 April 1990 the Commission decided to invite counsel

to submit further information with regard to the applicants' legal

representation. This information was submitted on 27 April 1990.

On 22 May 1990, at the instructions of the Rapporteur, the

Commission's Secretary requested the applicants under Rule 42 para.

2 (a) of the Rules of Procedure to submit further information, inter

alia statements of witnesses, in order further to clarify the

circumstances of their return to Iran.

The applicants submitted their reply to this request on

25 June 1990.

THE LAW

1. The applicants' representative has complained under Article 3

(Art. 3) of the Convention of the applicants' imminent expulsion to

Iran. He has claimed that by expelling them to Iran the Turkish

authorities would expose them to a serious risk of treatment in Iran

contrary to Article 3 (Art. 3) of the Convention which states:

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

degrading treatment or punishment."

a) The respondent Government contend that the applicants have not

complied with the condition as to the exhaustion of domestic remedies

within the meaning of Article 26 (Art. 26) of the Convention.

Reference is made inter alia to Article 125 of the Turkish

Constitution according to which judicial remedies are available

against all administrative acts and decisions.

Under Article 26 (Art. 26) of the Convention the Commission

may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case, an issue arises as to whether the

applicants should have first brought the substance of the complaint

they are now making before the Commission before the domestic

authorities concerned. However, the Commission need not resolve this

issue since the application is in any event manifestly ill-founded for

the following reasons.

b) The applicants' representative has alleged that the applicants

had informed the Turkish authorities that they might be persecuted in

Iran. The applicants' representative has submitted that when they

were handed over by the Turkish authorities to the Iranian

authorities, the UNHCR representatives had pointed out to the Turkish

authorities that they were refugees recognised by the UNHCR.

The Government contend that, after entering Turkey, the

applicants only informed the Turkish authorities that they had fled

Iran to avoid having to perform military service, and that they gave

no indication of a danger of political persecution. Moreover, while

in Turkey, the applicants were not granted refugee status. Rather,

the UNHCR merely registered them and agreed to assist them in finding

a third country to take them in. When brought to the border on

26 November 1988, the applicants were released for the purpose of

allowing them to return to Iran without the Turkish authorities

informing the Iranian authorities about their operation.

The Government also contend that the military service awaiting

the applicants in Iran could not render their return to Iran contrary

to Article 3 (Art. 3) of the Convention. In the Government's view the

applicants have not shown any serious danger that would otherwise

await them in Iran.

The Commission recalls 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 Article 3 (Art. 3) of the Convention, which

prohibits inhuman treatment (see No. 12102/86, Dec. 9.5.86, D.R. 47

p. 286 ; mutatis mutandis Eur. Court H.R., Soering judgment of 7 July

1989, Series A no. 161, pp. 32 et seq.).

The Commission notes at the outset that the actual

circumstances of the applicants' return from Turkey to Iran are in

dispute between the parties. The Commission does not find it

established whether, as the applicants' representative has contended,

the Turkish authorities directly handed the applicants over to the

Iranian authorities or, as the Government have submitted, the Turkish

authorities, without drawing the Iranian authorities' attention to the

applicants, released them in the border region, so that they could

themselves return to Iran. In particular, the Commission notes that,

although the applicants' representative has claimed that his version

could be supported by two witnesses, he has not, despite a request

from the Commission, submitted any statement by either of these

persons.

It is true that, in the submissions of the appicants'

representative, the applicants should not have been returned to Iran

at all, as they had previously avoided military service. The

applicants' representative has also referred to their political

activities in Iran and to the fact that they had fled the country.

The Commission recalls that the mere fact that the applicants

feared that, upon their return to Iran, they would be obliged to

perform military service cannot as such raise an issue under Article

3 (Art. 3) or any other provision of the Convention (see No. 4314/69,

Dec. 2.2.70, Collection 32 p. 97).

Moreover, the Commission considers that the applicants have

not shown that, at the time when they left Turkey, they had other

serious grounds to fear that, upon their return to Iran, they would be

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention on account of their evasion of military service or their

previous political activities in Iran or for any other reason. It is

relevant to note in this connection that there is no evidence showing

that the applicants were in fact subjected to inhuman treatment after

their return to Iran. The information provided by the applicants'

representative merely indicates that they were enlisted into the

Iranian army for five years. However, as stated above, the Commission

considers that the obligation to perform military service cannot as

such raise an issue under the Convention and this opinion is not

changed by the fact that in the present case the obligation relates to

an unusually long period.

As a result, the Commission finds that the applicants'

representative has failed to show that the Turkish authorities exposed

the applicants to a serious risk of treatment contrary to Article 3

(Art. 3) of the Convention.

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.

2. The applicants' representative has also complained under

Article 13 of the Convention, taken together with Article 3 (Art. 13+3),

that there was no effective remedy open to the applicants in Turkey.

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

"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 just found that the right of an alien to

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

Convention. Article 13 (Art. 13) of the Convention cannot be invoked

to enforce the substance of rights not guaranteed by the Convention.

Insofar as the applicants' representative claimed that upon

their return to Iran the applicants would be subjected to treatment

contrary to Article 3 (Art. 3) of the Convention, the Commission has

found that this complaint is manifestly ill-founded. Article 13

(Art. 13) of the Convention only enshrines the right to an effective

remedy in domestic law in respect of a grievance which must be an

"arguable one" in terms of the Convention (see Eur. Court H.R., Boyle

and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52;

Powell and Rayner judgment of 21 February 1990, Series A no. 172,

para. 33). The Commission, recalling that the complaint under Article

3 (Art. 3) is manifestly ill-founded, finds that the complaint under

Article 13 (Art. 13) of the Convention cannot be considered to be an

arguable claim.

It follows that the remainder of the application is also

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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A. AND K.B.F. v. TURKEY

A. AND K.B.F. v. TURKEY