Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16400/90

by H.S. and H.Y.

against the Netherlands

The European Commission of Human Rights sitting in private

on 10 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 2 April 1990

by H.S. and H.Y. against the Netherlands and registered on 4 April

1990 under file No. 16400/90;

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 applicants are Lebanese citizens, born in 1965 and 1968,

respectively. They are at present detained in the special detention

centre at Schiphol Airport, Amsterdam, the Netherlands. In the

procedure before the Commission they are represented by Mr. Th.

Spijkerboer, a lawyer practising in Zaandam.

1. The first applicant left Beirut on 10 February 1990 and flew

to Cyprus. The next day he flew to Amsterdam via Vienna, Austria. In

Amsterdam he immediately requested asylum.

On 21 February 1990 he was interviewed by an official from the

Ministry of Justice. As reasons for his asylum request he stated,

inter alia, that the war and the generally dangerous situation were

causing problems for him, in particular in his trade in gas-tanks. He

denied ever having been a member of a political party or militia and

stated that he had never taken part in the conflict and did not wish

to seek protection by joining one or another group. On his departure,

he had paid security guards at Beirut airport 150 US dollars to leave

him alone.

On 22 February 1990, the Deputy Minister of Justice rejected

the first applicant's asylum request and also refused to grant him a

residence permit.

The first applicant's request of 5 March 1990 for a review of

this decision was apparently denied suspensive effect for his

deportation. He, therefore, with the assistance of counsel,

instituted summary proceedings (kort geding) with the President of the

Regional Court (Arrondissementsrechtbank) of Haarlem demanding the

right to remain in the Netherlands pending his appeals on his asylum

request.

In his request for review and in his summary proceedings

he stated, inter alia, that he lived in an Amal-militia controlled

area, and that he has been active for them in a minor fashion. He has

done guard-duty and occasionally participated in the fighting. His

brother is a high-ranking Amal official who has had to flee Beirut in

1988, following an interrogation by Syrian Security Police. The first

applicant himself has been detained by the Syrians and has been

arrested and ill-treated by Hezbollah-militia people. On the last

such occasion, just before he went to the Netherlands, he recognised

several ex-Amal people among his interrogators and he now fears he is

presumed to be active for Amal. He submitted that his deportation to

Lebanon would be contrary to Article 3 of the Convention.

On 6 April 1990, the President of the Regional Court rejected

the first applicant's injunction request. The President stated, inter

alia, that the first applicant has relied on the general situation in

Lebanon to support his asylum request, but that his personal situation

is much the same as that of many young Lebanese. Nor can the first

applicant's desire not to participate in the conflict be equated to a

political standpoint which would attract persecution. As to Article 3

of the Convention, the President stated that the individual

circumstances of the first applicant's case could not lead to the

conclusion that he faced a "real risk" of treatment contrary to this

Article if returned to Lebanon.

2. The second applicant also left Beirut on 10 February 1990, and

flew via Cyprus and Austria to Amsterdam, where he requested political

asylum.

On 21 February 1990 he was interviewed by an official from the

Ministry of Justice. As reasons for his asylum request he stated,

inter alia, that he was fleeing the war situation and the lack of

freedom in which he lived. He lived in a Hezbollah-militia controlled

area and had to conform to their opinions and was subjected to

pressure to join. He denied ever having been a member of a political

party or militia, and stated that he had never taken part in the

conflict. He had never personally suffered any particular

difficulties due to the conflict, other than that his employer had had

to close his business recently due to militias forcing him to take on

unpaid work, thereby leaving the second applicant without an income.

On his departure, he had refused to pay Beirut airport security guards

money which they requested to leave him alone, but he was nevertheless

not hindered by them.

On 22 February 1990, the Deputy Minister of Justice rejected

the second applicant's asylum request and also refused to grant him a

residence permit.

The second applicant's request of 5 March 1990 for a review of

this decision was apparently denied suspensive effect for his

deportation. He, therefore, with the assistance of counsel,

instituted summary proceedings (kort geding) with the President of the

Regional Court of Haarlem demanding the right to remain in the

Netherlands pending his appeals on his asylum request.

In his request for review and in his summary proceedings he

stated, inter alia, that his entire family has been under pressure

from Hezbollah since late 1988 when his father was shot in the legs

because he was suspected of being an informer for General Aoun of

Amal. The second applicant fled, first to another district of Beirut,

and later to the south of Lebanon. There he also had to move from

place to place, and he attracted the attention of the South Lebanese

Army, which wished him to join them. He returned to Beirut in late

1989. He stated that he could not safely go to any part of the

country. He submitted that his deportation to Lebanon would be

contrary to Article 3 of the Convention.

On 6 April 1990, the President of the Regional Court rejected

the second applicant's injunction request. The President stated,

inter alia, that the second applicant has relied on the general

situation in Lebanon to support his asylum request, but that his

personal situation is much the same as that of many young Lebanese.

Nor can the second applicant's desire not to participate in the

conflict be equated to a political standpoint which would attract

persecution. As to Article 3 of the Convention, the President stated

that the individual circumstances of the second applicant's case could

not lead to the conclusion that he faced a "real risk" of treatment

contrary to this Article if returned to Lebanon.

COMPLAINTS

The applicants complain that if deported to Lebanon they face

a real risk of suffering treatment contrary to Article 3 of the

Convention by:

a. becoming the victims of random violence;

b. being forced to participate in the fighting;

c. being subjected to reprisals for trying to avoid induction

into a militia;

d. being subjected to ill-treatment at the hands of rival

militias.

Furthermore, the applicants submit that what is of primary

importance in assessing this risk is what happened to them in Lebanon,

and not what they told the officials of the Ministry of Justice when

interviewed on their asylum request. In this respect, the applicants

point out that at these interviews they do not have recourse to legal

assistance, their statements are first interpreted into Dutch and then

into a written form, and there is no way of subsequently checking what

they did or did not say as there is no audio recording of the

interview.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 April 1990 and registered

on 4 April 1990.

On 5 April 1990, the Commission decided, under Rule 36 of its

Rules of Procedure, to indicate to the respondent Government that it

was desirable in the interest of the parties and the proper conduct of

the proceedings before the Commission not to deport the applicants to

Lebanon until the Commission had had an opportunity to examine the

application. The parties were also invited to submit further relevant

factual information before 4 May 1990.

On 2, 6 and 17 April 1990 the applicants submitted further

documents in support of the application.

THE LAW

The applicants complain that if deported to Lebanon they face

a real risk of suffering inhuman or degrading treatment at the hands

of militias or in the course of the general civil war situation,

either as innocent bystanders or through being coerced into

participating in the fighting. They invoke 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 applicants'

original statements to officials of the Ministry of Justice referred

to the general situation in Lebanon. Subsequent to the refusal of

asylum, they revised their stories to include specific details of

personal and family difficulties caused by militias or the war situation.

In their appeals in summary proceedings the applicants also

relied on Article 3 (Art. 3) of the Convention. The Commission notes

that the President of the Regional Court examined this argument,

also in the light of the aforementioned Soering judgment, and

considered that it could not be concluded that there was a "real risk"

of the applicants being exposed to treatment referred to in Article 3

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

Furthermore, the Commission notes that, according to their own

statements, the applicants have only to a minor degree been involved

in political activities in Lebanon. The first applicant has allegedly

been active for Amal in a minor fashion while the second has not been

active at all but only refers to vague pressures from certain groups.

Their situation would not appear to be different from that of large

numbers of Lebanese.

In these circumstances the Commission considers that the

grounds which the applicants present in support of their complaint are

not sufficient to substantiate the conclusion that they face a real

risk of being subjected to treatment as referred to in Article 3

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

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. ; Y. v. NETHERLANDS

S. ; Y. v. NETHERLANDS

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