Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14209/88

by A. 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 26 August 1988

by A. and others against the Netherlands and registered on 12

September 1988 under file No. 14209/88;

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 23 persons of Surinamese nationality who,

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

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

the procedure before the Commission they are represented by Mr. B.R.

ANGAD-GAUR, a lawyer practising in the Hague.

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, beginning in June 1988, the applicants all

individually received decisions that they did not comply with Dutch

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

the Netherlands. The applicants all duly applied for a review of this

decision to the Minister of Justice. They all individually received

written replies stating that their review requests would not be

granted suspensive effect.

Thereupon, the applicants all individually instituted summary

proceedings demanding suspensive effect for the duration of their

appeal proceedings in the Netherlands.

On 10 June 1988, in the first such case, the President of the

Regional Court (Arrondissementsrechtbank) of the Hague adjourned the

case for further information by the parties. In his further

submissions, the lawyer of the applicant concerned, inter alia, raised

the point that the expulsion of the "tolerated Surinamese" constituted

a collective expulsion, in violation of Article 4 of Protocol No. 4.

On 7 September 1988 the President decided that this applicant's

appeals to remain in the Netherlands had no prospect of success. He,

therefore, rejected the request to be allowed to remain in the country

pending this applicant's appeals. Subsequent to that decision the

applicant involved was sent back to Surinam.

THE COMPLAINT

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.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 August 1988 and

registered on 12 September 1988.

A request for an indication in accordance with Rule 36 of the

Commission's Rules of Procedure to the respondent Government that in

the interest of the Parties and the proper conduct of the proceedings

it was desirable that the applicants not be deported to Surinam until

the Commission had had an opportunity to examine the application was

provisionally refused by the President on 12 September 1988.

On 12 September 1988 the Rapporteur requested the respondent

Government, in accordance with Rule 40 para. 2 (a) of the Commission's

Rules of Procedure, to provide further information on the Government's

policy in respect of tolerated Surinamese before 28 September 1988.

The Government's observations were received on 28 September

1988. These were communicated to the applicants who were invited to

submit comments in reply before 31 October 1988.

The applicants' observations in reply were received on 28

October 1988.

INFORMATION BY THE PARTIES

The Government

The policy in the Netherlands concerning the granting of

refugee status always involves an individual consideration of an

applicant's case to be recognised as a political refugee or otherwise

someone who can be granted a residence permit on the basis of the

Aliens Act (Vreemdelingenwet).

The concept of collective expulsion does not exist under Dutch

Aliens Legislation.

The toleration policy towards Surinamese asylum-seekers was

begun on 5 December 1986 to cease sending people back to the civil war

situation in Surinam. Subsequently, all requests by Surinamese for

residence permits were accorded a low priority, until in February 1988

it was considered that the situation in Surinam had become safe.

Thereafter, the "regular" policy was reapplied, and the examination of

requests for residence permits of Surinamese was again taken up.

Because, in the meantime, the group of tolerated Surinamese

had grown to comprise several thousand people, inevitably many of them

will be returning to Surinam at the same time, but that does not mean

that their return is collective. Furthermore, in accordance with

regular policy, each individual is first given ample opportunity to

depart voluntarily. If he is unable to pay, he can receive financial

assistance. Forced deportation is only used sparingly, and is

individually reviewed before being carried out. Before a deportation,

the Netherlands Embassy in Surinam is requested to inform the

Government if there is any known risk to the person if deported to

Surinam.

In the case of the applicants, they do not have a right to

reside in the Netherlands under the Aliens Act. They have been

informed of this individually. They have asked individually for a

review. They have individually been informed that they may not remain

in the Netherlands pending this review. They have individually

instituted summary proceedings against their expulsion.

As is evident from the Commission's case law, deportation

cannot be described as collective "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", which is

always the case under Dutch policy on aliens (No. 7011/75, Dec.

3.10.75, Yearbook 19 p. 416, No. 7704/76, Dec. 11.3.77, unpublished,

No. 7757/77, Dec. 3.3.78, unpublished).

Where the summary proceedings have not yet led to a decision,

the respondent Government submit, there has not yet been an exhaustion

of domestic remedies.

The applicants

The "tolerated Surinamese" are all former nationals of the

Netherlands who lost that nationality without being consulted. They

all speak Dutch, have family in the Netherlands and have been educated

in the same educational tradition as that of the Netherlands. The

toleration policy is a unique policy designed specifically for these

people.

The applicants all have received standardised decisions that

they must leave the Netherlands. They have all, in a new standard

policy, not been allowed to remain pending their appeals. In nothing

does it appear that their individual cases have been individually

reviewed. No investigation has taken place into the current

circumstances of the applicants, who have now developed family ties,

have jobs or are going to school, and otherwise have assimilated

themselves into Dutch society. Nor has there been a proper

examination into the dangers which individuals may face if returned to

Surinam. The applicants are sent back purely on the basis of their

situation at the time of their arrival in the Netherlands.

Furthermore, after the decision in summary proceedings of 7

September 1988 it is clear that this no longer constitutes an

effective remedy to prevent expulsion. Now that the applicants are

not allowed to await their final appeal before the Council of State,

they will often either have no practical possibility to lodge this

appeal where the applicant is already gone, or this appeal will no

longer be effective because the applicant no longer has an

interest.

THE LAW

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 respondent Government have stated that the applicants are

individually expelled. They have an individual right to review of the

denial of a residence permit by the Minister of Justice and later, to

a procedure before the Council of State, and they have all availed

themselves of the right to a review. Furthermore, the Government

contend that the applicants have all introduced individual summary

proceedings against their expulsion, and that, as long as there has

not yet been a decision in these proceedings, the applicants have not

yet exhausted domestic remedies.

The applicants allege that their expulsion decisions only have

the appearance of individual decisions. They contend that the

individual review before the Council of State is illusory because they

will have been expelled before they can institute it, or, at any rate,

before their case comes up. Furthermore, they submit that the

decision of 7 September 1988 in summary proceedings can be regarded as

a test case and that, therefore, the other applicants do not have to

exhaust this remedy as it has proven to be ineffective.

The Commission considers that it is not necessary to decide

whether or not the applicants have all exhausted the domestic remedies

available to them, because it finds the application manifestly

ill-founded for the reasons set out below.

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 examination

of the applicants' requests for asylum was suspended by the

Netherlands authorities between 5 December 1986 and February 1988.

Thereafter, examination of these requests was taken up again. The

applicants have all received decisions on their requests and have

requested a review of these decisions by the Minister of Justice. In

their review requests they have had the opportunity to present their

objections to their expulsion. All the applicants have individually

received a reply from the Minister of Justice denying them suspensive

effect for their review requests. They have all instituted summary

proceedings against their expulsion. Before the President of the

Regional Court they have the opportunity to explain their objections

to their expulsion in these proceedings. In the so-called test case

of 7 September 1988, the President of the Regional Court examined that

applicant's individual complaints. The Commission further notes that

any unfavourable decision by the Minister of Justice regarding the

review requests may be appealed to the Council of State by each

applicant individually.

In these circumstances the Commission considers that the

applicants' expulsions do not reveal the appearance of a collective

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

It follows that the application must 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&-

Adjina ALIBAKS, born on 28.1.1942

Harripersad BANDHOE, born on 27.8.1962

Baldew Sarmah BIHARI, born on 27.12.1955

Bisoende CHAITOE, born on 7.11.1933

Oemar FATEHMOHAMMED, born on 28.8.1934

Radjinderkoemar GANGOE, born on 5.5.1965

Mohamedsherief CHAFOER, born on 30.5.1961

Yvonne Goyasreedevi GOELELA, born on 8.10.1963

Hendrik GOWRIE, born on 23.3.1950

Narinderdew JAGTOE, born on 5.8.1959

Rajendrekoemar JHINKOE, born on 9.4.1961

Iwan Percy LETTERBOOM, born on 15.9.1940

Hein Adolf LODIK, born on 16.10.1956

Krishnepersad NIMAR, born on 8.2.1951

Soerin Indrechandre JAN ORI, born on 20.5.1968

Kasipersad RAMLAL, born on 1.4.1961

Soerishing RANSING, born on 12.6.1966

Lilawatie RATTANSINGH, born on 30.10.1961

Dielepkoemar SEWNANDAN, born on 14.3.1962

Jaswantsing SOEKRADJ, born on 27.9.1958

Hementkoemar SOMAI, born on 28.9.1960

Lloyd Etienne WIEGEL, born on 1.2.1962

Ivonne Chandrawattie SAHEBLAL, born on 7.9.1957

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ALIBAKS and Others v. the NETHERLANDS

ALIBAKS and Others v. the NETHERLANDS