Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16558/90

by S.Y.

against the Netherlands

The European Commission of Human Rights sitting in private

on 18 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

Mrs. J. LIDDY

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 23 April 1990

by S.Y. against the Netherlands and registered on 3 May 1990 under

file No. 16558/90;

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 Turkish national, born in 1950, and

presently residing in Rotterdam, the Netherlands. He is a chemical

engineer and majority shareholder in several mining and trading

companies based in Turkey. Before the Commission he is represented by

Mr. J. Groen, a lawyer practising in The Hague.

The facts as submitted by the applicant may be summarised as

follows.

Since the age of 16, the applicant has been politically active

in Turkey. As a student, he was a member of "Dev Genç", a left-wing

youth organisation, and was arrested in 1971. Since 1974 he has been

a member of the marxist-leninist faction of the Turkish communist

party (TKP/ML) and has actively assisted in organisational and

propaganda tasks for the party as well as since 1983 providing jobs in

his mines for political friends who have been in prison. He was a

member of the central bureau of the party and functioned under a

code-name. He alleges that he refrained from public political

activities out of fear of reprisals against his two children.

He alleges that in 1979 he was arrested and tortured and

ultimately spent a year in prison. In 1982 he was again arrested and

tortured with electro-shock and "falakka". The police allegedly

wanted him to give information about the TKP/ML and about "TIKKO"

(Turkish Workers and Peasants Liberation Army).

In 1983, the applicant set up his business enterprises with

four minority partners. He alleges that the police black-mailed him

and that he had to pay them significant sums of money every week (up

to 100,000 Turkish pounds; approximately 220 French francs).

On 6 June 1983 the applicant received a Turkish passport,

valid for two years. He alleges that he had to pay bribes to receive

it. It appears from this passport that between late 1983 and mid-1985

he made a great many trips abroad. The passport was renewed until

1990 by the Turkish consulate in the Netherlands after the applicant

had fled Turkey.

It appears that on 2 May 1983 the applicant was convicted for

fraud by a Turkish court, but that this case has been reopened and not

yet brought to a final decision. The applicant alleges that various

of his political comrades were heavily sentenced in 1983 and that some

of them were executed under suspicious circumstances. Another of them

has apparently been granted political asylum in France.

In April and May 1985 the applicant's house was searched and

he and his family apparently went into hiding, moving from place to

place at frequent intervals. On 5 November 1985 the applicant fled

Turkey by means of a flight with a ticket purchased by a business

associate in Pakistan. It appears that the applicant's brother had

left by way of Istanbul airport several months before, and that the

applicant had paid bribes to allow him to leave unhindered.

On 5 November 1985 the applicant requested political asylum in

the Netherlands. This was refused on 14 August 1987 by the Deputy

Minister of Justice, inter alia, because he did not consider that the

applicant was being sought in Turkey.

The applicant requested on 12 October 1987 that this decision

be reviewed. Suspensive effect for this request was refused.

The applicant introduced summary proceedings (kort geding)

with the President of the Regional Court (Arrondissementsrechtbank) of

The Hague. On 15 August 1988, in an interlocutory judgment, the

President adjourned the examination of the case in order to have the

authenticity of an arrest warrant established, which the applicant had

just produced.

On 23 March 1990 the President rejected the request for

suspensive effect for the applicant's pending appeals. On the basis

of information provided by the Netherlands Ministry of Foreign Affairs

and the UNHCR, the President considered that the applicant could not

be considered a bona fide political refugee. The President

considered, inter alia, that the alleged arrest warrant was an

authentic document but not an arrest warrant. Furthermore, the

freedom to travel in and out of Turkey which the applicant enjoyed

between 1983 and 1985 and the fact that his passport was renewed

without difficulty in 1985 indicated that he is not wanted by the

Turkish authorities. Finally, the applicant had failed to explain how

he could have paid the alleged bribes while he was in hiding.

COMPLAINTS

1. The applicant complains that, if he is returned to Turkey, he

will be prosecuted for his political actions in the past, and will be

tortured and probably executed under suspicious circumstances. He

invokes Article 3 of the Convention.

In support of this claim the applicant refers to a letter by

Amnesty International which apparently indicates that the documents

which the applicant has produced are authentic and that he will

without doubt be prosecuted and very possibly liquidated if returned

to Turkey. Furthermore, he has produced confidential secret service

documents which illustrate that he has been denounced by a political

comrade, Mr. R.G., as the head of TKP/ML and TIKKO, under the code

names "Teknisyen" and "Patron". These documents indicate that the

applicant managed his business enterprises as a cover for his

political activities, which included general organisation,

intelligence and education. These documents are dated July 1988, and,

according to a letter from the applicant's wife dated 27 November

1989, they were purchased at great expense from corrupt officials.

The applicant has also produced a letter from his Turkish lawyer

indicating that he is indeed being sought, that his family is under

surveillance and that he will surely be arrested upon his return to

Turkey. It is not indicated if these documents have been presented to

the Dutch authorities, or if they have been taken into account in the

summary proceedings.

2. The applicant also complains about the duration of the Dutch

proceedings on his asylum request, which are still pending after

having been initiated on 5 November 1985. He invokes Artile 6 para. 1

of the Convention.

THE LAW

1. The applicant complains that, if returned to Turkey, he will

be subjected to torture or inhuman or degrading treatment, and

possibly to arbitrary execution. 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 Netherlands

Ministry of Foreign Affairs and the United Nations High Commissioner

for Refugees both denied the veracity of the arrest warrant produced

by the applicant and cast doubt on several aspects of his story.

Furthermore, the Commission notes that the President of the Regional

Court adjourned the summary proceedings in order to have the alleged

arrest warrant authenticated, from which it appears that he examined

the applicant's case in detail. The President further noted that the

applicant claims to have purchased a passport, and had it renewed

later, while being the subject of a criminal and/or political trial.

The President also noted that the applicant made many trips outside

Turkey after the alleged conviction of 2 May 1983, passing through

police checks at Istanbul airport on numerous occasions, apparently

unhindered.

Furthermore, the Commission notes that it appears from the

evidence as submitted by the applicant that his Turkish lawyer and

Amnesty International consider that he will be the subject of

prosecution in Turkey in connection with his political past. Assuming

this to be the case, however, the applicant has not substantiated that

this necessary entails being subjected to treatment contrary to

Article 3 (Art. 3) of the Convention. The Commission notes in this respect

that the instances of ill-treatment to which the applicant refers date

from 1979 and 1982.

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 as referred to in Article 3

(Art. 3) of the Convention, if returned to Turkey.

In any event the Commission notes that after his return to

Turkey the applicant can bring an application before the Commission

under Article 25 (Art. 25) of the Convention in respect of any

violation of his Convention rights by the Turkish authorities.

This part of the application must therefore be rejected as

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

(Art. 27-2) of the Convention.

2. The applicant further complains of the duration of his asylum

proceedings, for which he invokes Article 6 para. 1 (Art. 6-1) of the

Convention.

However, the Commission recalls its case-law according to

which a decision as to whether an alien should be allowed to stay in a

country or be expelled does not involve either the determination of

the alien's civil rights or obligations or of a criminal charge within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see No. 8118/77,

Dec. 19.3.81, D.R. 25 p. 105).

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

For these reasons, the Commission

&SDECLARES THE APPLICATION INADMISSIBLE&S

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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Y. v. NETHERLANDS

Y. v. NETHERLANDS

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