Search
document

Document text Analytics

A.B. v. THE NETHERLANDS

Doc ref: 16830/90 • ECHR ID: 001-713

Document date: July 13, 1990

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

A.B. v. THE NETHERLANDS

Doc ref: 16830/90 • ECHR ID: 001-713

Document date: July 13, 1990

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 16830/90

by A. B.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. J. RAYMOND, Deputy 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 5 July 1990 by

A. B. against the Netherlands and registered on 5 July 1990

under file No. 16830/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national born in 1965. At the time

of introduction of this application he was in detention in the

Netherlands pending his expulsion. He is represented by Mr. W.A.

Venema, a lawyer practising in Rotterdam.

The facts as presented by the applicant may be summarised as

follows.

The applicant comes from a small town in Poland, where it was

well known that he sympathised with a political movement which was,

inter alia, against the military build up and compulsory military

service. In April 1986, the applicant was called up for his military

service, which he performed until November 1986 when he became

seriously ill with a disease of the liver. He was granted extended

leave to recuperate.

In May 1988, the applicant was declared physically fit for

military service, but psychologically unfit. He was therefore ordered

to do substitute military service. On 10 October 1988 he was called

up and ordered to serve as a refuse collector in the village where he

lived.

In December 1990, the applicant deserted from his substitute

military service. He had earlier obtained a passport and now made

several trips to West-Berlin to trade in Western goods. Apparently on

3 January 1990, he was summoned to appear in court on the charge of

desertion, which apparently carries a penalty of at least three

years. He fled Poland on 10 January 1990.

The applicant, without success, requested asylum in Austria

and the Federal Republic of Germany. He also remained for a time in

the Federal Republic of Germany. On 16 May 1990 he entered the

Netherlands on his way to the United Kingdom where he intended to

request asylum at the embassy of the Republic of South Africa. He was

arrested while attempting to board a ferry bound for England, because

he did not have a visa for the United Kingdom.

On 5 June 1990, the applicant requested asylum in the

Netherlands. This was refused by the Deputy Minister of Justice on 11

June 1990. The applicant requested a review of this decision, but

this request was not accorded suspensive effect for his deportation.

Thereupon he instituted summary proceedings demanding suspensive

effect. On 4 July 1990 this was refused by the President of the

Regional Court of The Hague. The President considered, inter alia,

that the applicant's political activities could not lead to

prosecution in Poland and that his desertion did not appear to be

politically motivated. Furthermore, the applicant had been able to

leave Poland unhindered.

COMPLAINTS

The applicant complains that, if returned to Poland he will be

prosecuted for desertion from his substitute military service, to

which he was allegedly condemned for his anti-militarist views. He

submits that he will be sentenced to a minimum of three years'

imprisonment and alleges that it constitutes inhuman and degrading

treatment to expel him and subject him to that imprisonment.

Furthermore, the applicant submits that his status in respect

of military service is tantamount to an official declaration that he

is "insane". This has as a consequence that he will never be able to

obtain reasonable employment, and that he has had to surrender his

driving licence. Furthermore, he was forced to work as a refuse

collector as a punishment for his political views, which work is

humiliating to him.

He invokes Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 July 1990 and registered

that same day.

On 5 July 1990, the Commission decided not to make an

indication to the respondent Government under Rule 36 of its Rules of

Procedure.

THE LAW

The applicant complains that if deported to Poland he will

face imprisonment for desertion and will never be able to obtain

reasonable employment. He submits that this constitutes inhuman and

degrading treatment and punishment and he invokes Article 3 (Art. 3)

of the Convention. This provision reads as follows:

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

degrading treatment or punishment."

The Commission recalls that the extradition of a person may

give rise to an issue under Article 3 (Art. 3) of the Convention, and

hence engage the responsibility of the extraditing State under the

Convention, where substantial grounds have been shown for believing

that the person concerned, if extradited, faces a real risk of being

subjected to torture or to inhuman or degrading treatment or

punishment in the country of destination (cf. Eur. Court H.R.,

Soering judgment of 7 July 1989, Series A no. 161, para. 91 p. 35).

This also applies, mutatis mutandis, to expulsion.

In the present case, the Commission notes that the applicant

deserted from his substitute military service because he found it

humiliating to collect refuse. He complains of the prison sentence

which he can expect in Poland and of not being allowed reasonable

employment in the future.

Furthermore, the Commission notes that the President of the

Regional Court in the summary proceedings considered that the

applicant could not expect prosecution for his political activities.

Nor did the President consider that the applicant's desertion was

politically motivated.

In these circumstances the Commission considers that the

grounds which the applicant presents in support of his complaint are

not sufficient to substantiate the conclusion that he faces a real

risk of being subjected to treatment prohibited by Article 3 (Art. 3)

of the Convention, if returned to Poland.

Therefore, the Commission finds 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

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J.A. FROWEIN)

LEXI

Lexploria AI Legal Assistant