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AS TO THE ADMISSIBILITY OF

Application No. 15607/89

by Selahattin OZBERK

against the United Kingdom

The European Commission of Human Rights sitting in private

on 15 February 1990, the following members being present:

MM. C.A. NØRGAARD, President

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

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 12 October 1989

by Selahattin OZBERK against the United Kingdom and registered

on 12 October 1989 under file No. 15607/89;

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 citizen, born in 1959. He is a

printer by profession. He resides, at present, in Rome. He is

represented in the proceedings before the Commission by

Mr. Michael Hanley, of Miller Wilson, Solicitors, London.

The applicant arrived at Heathrow airport in London on

31 May 1989 and applied for political asylum, pursuant to the

Convention Relating to the Status of Refugees (1951). He was

immediately detained under the provisions of the Immigration Act 1971,

first at Harmondsworth Detention Centre and then HM Prison Winchester,

following his participation in a hunger strike. He was served with a

notice refusing his application for asylum on 27 June 1989.

The applicant is of Kurdish ethnic origins and Alevi by

religion. He is a sympathiser of Devrimci Halkan Birligi (DHB), an

illegal and non-violent Kurdish political movement. He claims that

his brother was arrested and tortured by the Turkish police in 1980.

His brother was subsequently sentenced to eight years' imprisonment

for membership of the DHB. On being released on bail by the Supreme

Court in Ankara, he went into hiding. As a result of his brother's

disappearance, the applicant states that the authorities concentrated

their attentions on the family home with the result that the applicant

and another brother went into hiding to avoid interrogation. The

applicant was later arrested on 10 April 1989 in Adana and claims that

he was taken to a police station and beaten with truncheons, slapped

and kicked and interrogated about the whereabouts of his brother.

He has submitted a medical report which concludes that the

applicant's psychological state is consistent with his allegations of

maltreatment.

Following an application for judicial review of the refusal of

asylum, the Home Office undertook to review and re-consider the

applicant's case. He was then interviewed by an immigration officer

with the assistance of an interpreter and served with a "Minded to

Refuse" Notice. This Notice sets out the preliminary rejection of his

asylum application.

On 14 August 1989 the Home Office finally refused the

application for asylum. An application for leave to move for judicial

review of this decision was rejected by the High Court on 18 August 1989.

On 11 October 1989 the London representative of the United

Nations High Commissioner for Refugees (UNHCR) informed the Home

Office that in their view the applicant's fear of persecution was well

founded and that he qualified as a refugee under the 1951 Convention.

Amnesty International wrote to the Home Office on 11 October 1989

expressing the same opinion.

A third application for leave to move for judicial review of

the refusal of asylum was rejected by the High Court on 12 October

1989. Removal directions, originally set for 12 October 1989, were

deferred less than an hour before the departure time on a request by

the UNHCR for an opportunity to find a safe third country for the

applicant. The applicant then remained in detention at Pentonville

Prison until 26 October 1989 when he was flown to Italy under the

auspices of the UNHCR. He was eventually allowed to enter Italy on

31 October 1989 and is currently maintained in Rome by the UNHCR.

COMPLAINTS

The applicant complains that his removal from the United

Kingdom constitutes a breach of Articles 3 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 October 1989 and

registered on the same day. The Commission first examined the

application on 12 October 1989 and rejected an application that the

respondent Government be requested under Rule 36 of the Rules of

Procedure not to deport the applicant from the United Kingdom.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention of his removal from the United Kingdom.

The Commission first recalls that according to its established

case-law the right to asylum and freedom from expulsion are not as

such included among the rights and freedoms mentioned in the

Convention but that the expulsion of a person may nevertheless, in

certain exceptional circumstances, raise an issue under the Convention

and in particular under Article 3 (Art. 3) where substantial grounds

have been shown for believing that the person concerned would be

subjected, in the State to which he is to be sent, to treatment which

is in violation of this Article (see No. 10564/83, Dec. 10.12.84, D.R.

40 pp. 262, 265 ; Eur. Court H.R., Soering judgment of 7 July 1989,

Series A no. 161, para. 91).

In the present case, however, the Commission notes that the

respondent Government deferred the applicant's removal to Turkey at

the request of the UNHCR until a third country could be found which

was willing to admit him. He was then removed to Italy, where he is,

at present, maintained by the UNHCR. In these circumstances no issue

can arise under Article 3 (Art. 3) of the Convention.

It follows that the applicant's complaint under this provision

must be rejected as manifestly ill-founded within the meaning of

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

2. The applicant further complains under Article 13 (Art. 13) of the

Convention that there exists under United Kingdom law no effective

remedy in respect of his above complaint.

The Commission recalls that an issue can only arise under this

provision in respect of an "arguable" claim that there has been a

breach of one of the provisions of the Convention (see Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.

39, para. 71). The Commission notes that no issue under Article 3

(Art. 3) of the Convention arises in the present case since the

applicant was eventually removed to Italy where he lives at present.

The applicant's complaint under this provision does not therefore give

rise to an "arguable" claim for purposes of Article 13 (Art. 13). It

follows that this complaint must also be rejected as 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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OZBERK v. THE UNITED KINGDOM

OZBERK v. THE UNITED KINGDOM