Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13292/87

by S.T.N.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 November 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

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 15 October 1987

together with a request to apply Rule 36 of the Commission's Rules of

Procedure by S.T.N. against the Netherlands and registered on the same

day under file N° 13292/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the decision of the Commission on

16 October 1987 to invite the parties to submit further information

on the application;

Having regard to the information submitted by the Government

on 2 and 3 November 1987 and to the applicant's reply received on

10 November 1987;

Having regard to the decision of the President on

5 November 1987 not to apply Rule 36 of the Rules of Procedure;

Having regard to the renewed request for application of

Rule 36 and the decision of the Commission on 10 November 1987 not

to apply Rule 36;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as submitted by the parties may be

summarised as follows.

The applicant is a Togolese citizen, born in 1959 and a

student. He is at present living unlawfully in the Netherlands

and represented in the proceedings before the Commission by

Mr. W.A. Venema, a lawyer practising in Rotterdam.

The applicant entered the Netherlands on 26 January 1987.

On 9 February 1987, the applicant introduced a request for political

asylum and a request for a temporary residence permit with the police

in Rotterdam. He is under an obligation to report weekly to the

police.

The applicant was interviewed on 8 July 1987 by a civil

servant (contactambtenaar) of the Ministry of Justice. The applicant

declared that he had escaped from arrest in Togo on 5 October 1986, after

an attempt to overthrow the Government had failed on 23 September 1986.

The authorities were looking for him because his brother Mohammed

Souley Sebini was among the people arrested for having been involved

in this attempted coup. The applicant himself denied having been

involved in the coup, although his brother asked him to participate.

He stated that, whilst waiting for his former nanny to collect travel

money for him, he was informed that his brother had been killed on

government order. The applicant lived in hiding in a distant village

in Togo until 20 January 1987, when he entered Benin on foot. He

subsequently left Benin by plane on 23 January 1987 and travelled via

Lagos (Nigeria) to Paris (France) where he arrived the next day. A

compassionate and unidentified Senegalese paid for his train ticket to

the Netherlands. Two days later, on 26 January 1987, he arrived by

train in Rotterdam where he reported to a refugee centre. He cannot

recall the name of the airline, the colour of the aircraft, the name

and address of the Senegalese where he had stayed in Paris and other

such details. He considered that France and Nigeria have been

involved in the attempted coup and that Benin cannot be regarded as a

democratic country. For these reasons he did not request asylum in

those countries.

The Deputy Minister of Justice (Staatssecretaris van

Justitie) rejected his requests on 9 July 1987. With regard to the

request for asylum, the Deputy Minister observed that the applicant,

who had lived in Togo from the date of his alleged escape from arrest

until 20 January 1987, had failed to show that he would be liable to

persecution in Togo in the sense of the 1951 Geneva Convention on the

Status of Refugees. She observed, furthermore, that the applicant had

stayed in Benin and France before entering the Netherlands and that,

consequently, the Netherlands could not be regarded as the first

receiving country. After having decided that the applicant could not

receive asylum in the Netherlands, the Deputy Minister found no reason

of general interest for granting the request for a temporary residence

permit.

Against this decision the applicant has introduced a request

for review which has not yet been determined.

The applicant, who sought a suspension of a potential

deportation pending the review procedure, seized the President of the

Regional Court (Arrondissementsrechtsbank) of Rotterdam in injunction

proceedings (kort geding). This request was rejected on 13 October 1987.

The President considered that the review could not reasonably be

expected to be granted, given the inconsistent and implausible escape

story of the applicant. An appeal against this decision before the

Court of Appeal (Gerechtshof) is pending.

The applicant failed to comply with his duty to report to the

police after the injunction proceedings and is now in hiding.

COMPLAINTS

1. The applicant, invoking Article 3 of the Convention, fears

that he will be subjected to treatment contrary to this provision

since the Togolese authorities appear to accuse him of having been

closely associated with the attempt to overthrow the Government, as

a result of which his brother was arrested and later killed. He

complains that expulsion to a country that will punish him according

to a procedure contrary to Articles 3 and 6 of the Convention amounts

itself to a violation of Article 3 of the Convention.

2. The applicant submits that the deportation in itself would

amount to a violation of Article 3, given his poor health and the

necessity of treatment which is unavailable to him in Togo.

&_PROCEEDINGS BEFORE THE COMMISSION&S

The application was introduced and registered on

15 October 1987, together with a request for application of Rule 36

of the Commission's Rules of Procedure, in order to postpone the

applicant's deportation to Togo.

On 16 October 1987, after a preliminary examination of the

admissibility of the application, the Commission decided to adjourn

its decision on the Rule 36 request and instructed the Secretary to

request the parties to submit further information in accordance with

Rule 42 para. 2 (a) of its Rules of Procedure.

The information submitted by the applicant reached the

Commission's Secretariat on 20 October 1987 and was subsequently

transmitted to the Government for reply.

The information submitted by the Netherlands Government

reached the Commission's Secretariat on 5 November 1987 and was

transmitted to the applicant for his reply.

On the same day, the President of the Commission decided not

to apply Rule 36 of the Rules of Procedure.

The applicant's reply was received on 10 November 1987,

together with a renewed request to apply Rule 36.

On 10 November 1987, the Commission considered the new request

and decided not to apply Rule 36.

SUBMISSIONS OF THE PARTIES

A. The Government

The Netherlands Government intend to expel the applicant to

Togo after concluding from the hearing held on 8 July 1987 that he is

not a refugee under the provision of the 1951 Geneva Convention. The

deportation will take place as soon as the applicant has been located.

The Representative of the United Nations High Commissioner for

Refugees in the Netherlands was consulted. On 27 October 1987, the

Representative decided on the facts before him, and after consultation

with the main office in Geneva, that the applicant cannot be regarded

as a refugee under the 1951 Geneva Convention. The terms of this

decision were also communicated to the applicant's representative.

B. The applicant

The applicant contends that, if deported, he is likely to be

severely punished according to a procedure contrary to Articles 3 and 6

of the Convention. He fears for his life, given the fact that his

brother died in prison.

He submits as further proof a Togolese newspaper clipping in

the Ewe language, apparently giving twenty names of people involved in

the coup. Among these names appears the name of Souley Mohamed

Sebini.

He asserts that neither France nor Benin can be regarded as

first receiving country, given the fact that he only stayed in these

countries for the time necessary to organise his passage. Moreover,

the French and Benin authorities could not protect him against

expulsion to Togo. The attempted coup led to a nine-day intervention

by French troops in response to a request from the Togolese President

General Eyadema. Benin is bound by a security agreement concluded

with Ghana, Nigeria and Togo to give mutual access to its territory to

police authorities of another country, while the extradition treaty

between Togo and Benin can be abused to cover refugees.

In reply to the Government's information, and in particular

the position taken by the UNHCR Representative, the applicant submits

that, in the Togolese situation, it is conceivable that family members

can be persecuted for political activities of another family member.

The applicant refers to the 1987 Report of Amnesty International

(A.I.) and to a special A.I. report, 'Togo: Political

Imprisonment and Torture'. In these reports, A.I. expressed its

concern about the imprisonment of prisoners of conscience, and the

detention without trial of other suspected opponents of the

Government. The reports describe cases of torture and ill-treatment

of detainees, involving in fact cases of brothers and sisters. The

reports also state that 35 people were charged after the attempted

coup. Thirteen people were sentenced to death.

The applicant further submits that he suffers from

schistosomiasis (a disease which affects the intestines), for which

he alleges that he could not receive adequate treatment in Togo. He

introduces a letter of his physician, stating that further observation

on the progress of the disease and its treatment should take place in

the Netherlands and not in Togo as the illness can be fatal.

THE LAW

1. The applicant complains that his expulsion to Togo would

amount to treatment contrary to Article 3 (Art. 3) of the Convention

since, if expelled, he would probably be subjected to political

persecution and risk death either by sentence or ill-treatment in

prison.

2. The Commission observes that the proceedings pending in the

Netherlands, in their present state, do not suspend the execution of

the decision to expel the applicant. According to the Commission's

constant case-law, such remedies are not effective remedies within the

meaning of Article 26 (Art. 26) of the Convention and need not be exhausted,

where the allegation is that of a breach of Article 3 (Art. 3) of the

Convention in view of possible ill-treatment in the receiving country

(No. 7216/75, Dec. 20.5.76, D.R. 5 pp. 137, 142; No. 10760/84,

Dec. 17.5.84, D.R. 38 p. 224).

3. The Commission recalls that the right to asylum and the right

not to be expelled or extradited are not as such included among the

rights and freedoms mentioned in the Convention (No. 7256/75,

Dec. 10.12.76, D.R. 8 p. 161; No. 7465/76, Dec. 29.9.76, D.R. 7

p. 153).

However, the expulsion or extradition of a person may, under

certain exceptional circumstances, raise an issue under Article 3

(Art. 3) where there is a serious reason to believe that he or she will be

subjected to treatment prohibited by that provision in the receiving

country. The Commission refers in this respect to its constant

case-law (cf. No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48; No. 10479/84,

Kirkwood v. the United Kingdom, Dec. 12.2.84, D.R. 37 p. 158;

No. 10760/84, 17.5.84, D.R. 38 p. 224).

4. The applicant submits that, in the event of expulsion, he

might be tried under a procedure which does not comply with the

guarantees laid down in Article 6 (Art. 6) of the Convention.

The Commission does not consider it necessary to examine this

allegation. Even if it were well-founded, it would not in itself make

expulsion appear as inhuman treatment (No. 10308/83, Altun v. Federal

Republic of Germany, Dec. 3.5.83, D.R. 36 pp. 209, 232).

5. However, the risk of political persecution as such may raise

an issue under Article 3 (Art. 3) if it could lead to an arbitrary

sentence or inhuman detention conditions (No. 9012/80, Dec. 9.12.80,

D.R. 24 pp. 205, 219; No. 10308/83, Dec. 3.5.83, Altun v. Federal

Republic of Germany, D.R. 36 pp. 209, 233; No. 10760/84, Dec. 17.5.84,

D.R. 38 p. 224). In the present case the Commission finds no

appearance of such a violation.

The Commission notes that in the asylum proceedings in the

Netherlands it was found, after investigation of the applicant's

submissions, that he does not meet with the requirements to be granted

refugee status under the 1951 Geneva Convention, and that administrative

decision has been considered by civil courts pending the review

proceedings.

The Commission further notes that the Representative of

the United Nations High Commissioner for Refugees in the Netherlands

has examined the case and found no reason to avail himself of his

right to intervene in the proceedings in the Netherlands, since the

applicant could, in his opinion, not be granted refugee status under

the 1951 Geneva Convention.

Under its independent duty under the Convention to assess

itself the existence of an objective danger, the Commission notes that

the applicant declared that he had never been implicated in the

attempted coup. The applicant has never before been in conflict with

the Togolese authorities, neither for political nor for criminal

activities, and he does not submit any evidence showing that he is

likely to be persecuted in Togo.

6. Having considered all the elements of the file, the Commission

finds that the applicant has failed to substantiate his allegation

that he would risk inhuman treatment if he returned to Togo.

7. The Commission concludes that an examination of the

application in this respect does not disclose any appearance of a

violation of Article 3 (Art. 3) of the Convention.

It follows that this part of the application is manifestly

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

Convention.

8. The applicant further submits that, due to his virulent

illness, deportation itself would be tantamount to a violation of

Article 3 (Art. 3) of the Convention.

The Commission notes that the illness and its alleged

seriousness are maintained in a statement of the applicant's private

physician and has been submitted to the Commission only on

9 November 1987, where it was received the following day, as a reply

to the information given by the Government. The Commission notes that

the applicant is unwilling to have himself examined by the Netherlands

authorities for fear of deportation.

The applicant now bases his application on a completely

different reason which he has not yet submitted as an argument in

the domestic proceedings. The Commission considers that this new

allegation should be examined as a separate matter.

The Commission notes that, if the allegation is true, the

applicant could invoke Article 25 (Art. 25) of the Aliens Act

(Vreemdelingenwet) before the domestic authorities, according to which

deportation of an alien from the Netherlands should not take place if

his state of health does not permit such deportation. The Commission

therefore concludes that the applicant has not exhausted the domestic

remedies available to him in the Netherlands. Having rejected the

first section of this application as being manifestly ill-founded, the

Commission finds there are no special circumstances which could

absolve the applicant from presenting himself to the authorities for a

medical examination and from taking proper proceedings in the

Netherlands on the basis of the results of such an examination.

9. It follows that the application must, in this respect, be

rejected under Article 27 para. 3 (Art. 27-3) 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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