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M. ; N. v. THE NETHERLANDS

Doc ref: 14412/88 • ECHR ID: 001-1125

Document date: July 13, 1989

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M. ; N. v. THE NETHERLANDS

Doc ref: 14412/88 • ECHR ID: 001-1125

Document date: July 13, 1989

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 14412/88

by D. M. and H. N.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

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 15 November

1988 by D.M. and H.N. against the Netherlands and registered on 28

November 1988 under file No. 14412/88;

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 husband and wife, born in 1954 and 1961

respectively. They are Polish nationals and at present reside in

Rotterdam, the Netherlands. The husband is a maritime engineer.

Before the Commission they are represented by Mr. J. GROEN, a lawyer

practising in The Hague.

The facts submitted may be summarised as follows.

Since 1980, the first applicant has been actively involved in

the "Solidarity" trade union movement in Poland. Between 1980 and

1985 he was allegedly detained and beaten by the Polish police at

least five times. On 10 October 1985 he was informed that if he were

arrested again, he would not be released. The second applicant was four

months' pregnant at that time.

On 28 December 1985 the applicants fled to the Netherlands.

On 6 March 1986 they requested political asylum. On 15 October 1986

this was refused by the Deputy Minister of Justice. A request for a

review of this decision was introduced and suspension of expulsion

pending this review was granted. Under Dutch law, the lack of a reply

to a review request within a certain time is considered an "implicit"

rejection.

On 2 March 1987 the applicants appealed to the Council of

State (Raad van State) against the "implicit" rejection of the

review. On 27 May 1988 the Council of State rejected this appeal.

The applicant introduced summary proceedings before the

President of the Regional Court (Arrondissementsrechtbank) of The

Hague requesting the right to remain in the Netherlands pending the

examination of their case before the European Commission of Human

Rights and pending a renewed request for a review which they had

apparently lodged with the Deputy Minister of Justice.

On 20 June 1989, the President of the Regional Court rejected

the request. He stated, inter alia, that it had become clear in the

proceedings before the Council of State that there were no compelling

humanitarian reasons for allowing the applicants to remain in the

Netherlands. He also stated that, as the situation in Poland had

changed considerably since the applicants had left, their application

to the European Commission of Human Rights under Article 3 of the

Convention had little chance of success.

COMPLAINTS

1. The applicants complain that by sending them back to Poland,

the Netherlands would be submitting them to inhuman and degrading

treatment, because, in Poland, the first applicant would be subject to

arbitrary arrest and detention, and possibly murder, while the second

applicant is dependent on her husband and is in very poor health.

They invoke Article 3 of the Convention.

2. The applicants complain that neither in the review procedure

before the Deputy Minister of Justice, nor in the appeal to the

Council of State, did they have the opportunity to present new

arguments concerning their request for political asylum. Therefore,

they argue that they did not have a fair and public hearing. They

invoke Article 6 para. 1 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 November 1988 and

registered on 28 November 1988.

On 28 November 1988 a request for an indication under Rule 36

of the Commission's Rules of Procedure was refused by the President.

THE LAW

1. The applicants complain that the Netherlands would be

subjecting them to inhuman and degrading treatment by sending them

back to Poland. They invoke Article 3 (Art. 3) of the Convention, which

provides as follows:

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

degrading treatment or punishment."

The Commission notes that both the Council of State and the

President of the Regional Court considered that the situation in

Poland was no longer what it had been when the applicants fled, and

that there was now no danger that they would be subject to inhuman

treatment upon their return.

Furthermore, the Commission notes that the applicants have not

adduced any evidence to contradict this evaluation of the current

situation in Poland, but rely solely on a description of occurrances

before they fled in 1985.

In these circumstances, the Commission finds no appearance of

a violation of Article 3 (Art. 3). Therefore this complaint is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants also complain that they were denied a fair

and public hearing on their request for political asylum. They

invoke Article 6 para. 1 (Art. 6-1) of the Convention.

The relevant parts of this provision read as follows:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing ...".

However, the Commission recalls its constant case-law

according to which proceedings concerning residence permits for, or

expulsion of aliens do not entail any determination of the alien's

civil rights and obligations or of any criminal charge (see No.

9990/82, Dec. 15.5.84, D.R. 39 p. 119, and No. 9285/81, Dec. 6.7.82,

D.R. 29 p. 205).

It follows that this complaint is incompatible ratione

materiae with the provisions of the Convention, within the meaning of

Article 27 para. 2 (Art. 27-2).

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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