Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14457/88

by B. and others

against the Netherlands

The European Commission of Human Rights sitting in private

on 16 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 24 November

1988 by B. and others against the Netherlands and registered on 8

December 1988 under file No. 14457/88;

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 13 persons of Surinamese nationality who,

on the date of registration of this application were all resident in

the Netherlands. Their particulars are set out in the appendix.

Before the Commission they are represented by Mr. V.M. WESKI, a

lawyer practising in Rotterdam.

The facts as submitted by the applicants may be summarised as

follows:

Surinam became independant of the Netherlands in 1975. In

accordance with the agreements concluded at the time between the two

states, the applicants became citizens of Surinam.

In 1982 a military coup took place which overthrew the

democratic civilian Government in Surinam. Soon thereafter a flow of

political refugees commenced from Surinam to the Netherlands. In 1985

the resistance against the military Government grew into a civil war.

With many others, the applicants fled Surinam at this time.

Due to the large influx of Surinamese, and the difficult

situation in that country, the Netherlands Government decided in

December 1986 not to apply the usual rules governing the granting of

residence permits. Instead, all incoming Surinamese, including the

applicants, were to be tolerated in the Netherlands until such time as

the political situation in Surinam would have stabilised. Their

requests for political asylum and residence permits were suspended for

the time being. Only obviously serious cases were still examined and

only in such cases were residence permits granted.

In February 1988, the Netherlands Government announced that they

considered the situation in Surinam to have calmed down and that the

country was on the way to the re-establishment of democracy.

Therefore, from that moment on the unprocessed residence permit

requests of the approximately 5.000 so-called "tolerated Surinamese"

(gedoog-Surinamers) would be taken up and decided upon.

In consequence, those applicants who had already been denied

asylum in 1986 but who were not expelled under the toleration policy,

and those who had arrived in the Netherlands during the toleration

policy, were each informed after May 1988 that they did not comply with

Dutch immigration regulations and that, therefore, they would have to

leave the Netherlands.

Some of the applicants have instituted summary proceedings

before the President of the Regional Court (Arrondissementsrechtbank)

of the Hague requesting suspensive effect for the duration of their

appeal proceedings in the Netherlands. They have presented their

objections to their expulsion, but these requests have all been

denied.

The other applicants have had their appeals to the Council of

State decided. They have presented their objections to not being

granted asylum and a residence permit, but their appeals have all been

rejected late in 1988.

A Surinamese man who was not one of the applicants but who had

a similar background to the applicants', returned to Surinam and was

found dead in prison on 7 November 1988 under allegedly suspicious

circumstances soon after his arrival in Surinam.

THE COMPLAINTS

1. The applicants complain that they are being sent back to

Surinam by the Netherlands, in the execution of a policy of expelling

all Surinamese who were tolerated in the Netherlands between late 1986

and February 1988. They allege that this expulsion is collective in

character and that the standard-form decisions of expulsion with the

applicants' name on them only give the appearance of individualised

decisions. They invoke Article 4 of Protocol No. 4.

2. The applicants also complain that the situation in Surinam has

not yet become fully regularised and that all Surinamese returning

from the Netherlands risk being killed or seriously hurt if sent back

to Surinam. They allege that the Netherlands is treating them

inhumanly by expelling them to Surinam. They invoke Article 3 of the

Convention.

THE LAW

1. The applicants have complained that after having been

tolerated in the Netherlands under an official policy of toleration of

Surinamese refugees, they are now being expelled. They have invoked

Article 4 of Protocol No. 4 (P4-4) which provides as follows:

"Collective expulsion of aliens is prohibited".

The Commission recalls its decision in Application No. 7011/75

(Dec. 3.10.75, Yearbook 19 p. 416, 454) wherein it defined collective

expulsion as follows:

"...any measure of the competent authorities compelling

aliens as a group to leave the country, except where such a

measure is taken after and on the basis of a reasonable and

objective examination of the particular cases of each

individual alien of the group".

The Commission notes that in the present case the expulsion or

the examination of the applicants' requests for asylum was suspended

by the Netherlands authorities between 5 December 1986 and February

1988. Thereafter, examination of these cases was taken up again. The

applicants have, individually, received decisions on their requests

and have requested a review of these decisions by the Minister of

Justice. They have all instituted summary proceedings before the

President of the Regional Court or appeals to the Council of State

against their expulsion. Before the President of the Regional Court

they have the opportunity to explain their objections to their

expulsion. Before the Council of State, which has already decided on

their cases, they have had the opportunity to explain their objections

to not being granted asylum or a residence permit.

In these circumstances the Commission considers that the

applicants' expulsion does not reveal the appearance of a collective

expulsion within the meaning of Article 4 of Protocol No. 4 (P4-4).

It follows that this complaint must be rejected as being

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

27-2) of the Convention.

2. The applicants have also complained that they all face being

severely ill-treated or killed if returned to Surinam. They allege

that sending Surinamese people back to Surinam constitutes inhuman

treatment on the part of the Netherlands. 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".

On the basis of the information submitted, the Commission

considers that the applicants have failed to substantiate their

complaint that the situation in Surinam is so dangerous that a

possible return of them would violate Article 3 (Art. 3) of the

Convention.

It follows that this complaint must also be rejected as being

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)

APPENDIX

&SParticulars of the applicants&-

Premnath BHAGELOE, born on 11.5.1960

Sandijar KROMOINANGOEN, born on 20.2.1947

Trimo HARJOMOHAMED, born on 7.7.1937

Samsoender RAMDIEN, born on 27.11.1930

Stuart Oomperkash JETHOE, born on 25.3.1958

Agnes Santakoemarie BANDHOE, born on 16.9.1959

Soeroedjpersad KATWAROE, born on 4.6.1964

Wadjiman NAWAWI, born on 29.1.1959

Wladimir Egbert LONT, born on 26.12.1935

Warsimin William DASAR, born on 29.8.1934

Soekhia BHOELAI, born on 16.12.1931

Soerdjew SOWDAGAR, born on 11.7.1969

Seurni MODRONO, born on 20.3.1962

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B. and Others v. the NETHERLANDS

B. and Others v. the NETHERLANDS