Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11769/85

by Tauseef AKTHAR

against the Netherlands

The European Commission of Human Rights sitting in private on

2 March 1987, the following members being present:

MM C.A NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 August 1985

by Tauseef Akthar against the Netherlands and registered on

30 September 1986 under file No. 11769/85;

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 facts of the case as they have been submitted by the

applicant may be summarised as follows.

The applicant is a Pakistani citizen, born in 1952. At the

time of introducing the application he resided at Amsterdam, the

Netherlands.

In the proceedings before the Commission the applicant is

represented by Mrs. M.D. van Aller, a lawyer practising in Amsterdam.

The applicant claims that he has been a member of the Pakistan

People's Party (P.P.P.) since September 1970, and that he was an active

member of this party between 1970 and 1977.

He further claims that, after the political events in

Pakistan, he was arrested in June 1979 during a demonstration and that

he was kept in prison until September 1981. During this period he

contends that he was ill-treated.

Apparently because of efforts by his family, the applicant was

released, having signed a statement that he would undertake no further

activities on behalf of the P.P.P.

The applicant claims that subsequently he nevertheless

continued his activities on behalf of the P.P.P., and that he left

Pakistan on 17 May 1982 when the police were looking for him again.

According to the applicant, he then successively went to Iran,

Turkey, Bulgaria, Yugoslavia, Austria, Switzerland, France and

Belgium.

On, or about, 7 June 1982 the applicant came to the

Netherlands and on 9 August 1982 he reported himself to the police at

Den Helder requesting to be admitted as a refugee and to be given a

residence permit.

However, on 2 December 1982 the Deputy Minister of Justice

rejected the applicant's requests.

The Deputy Minister considered, inter alia, that the

applicant could not be regarded as a prominent opponent of the

military regime in his country, and that he had not substantiated his

allegations that he risked persecution in his home country.

The applicant thereupon introduced a request for revision,

which was initially granted suspensive effect. This suspensive effect

was then withdrawn because the applicant was said to have submitted

forged documents.

On 26 April 1983, the applicant initiated summary proceedings

before the President of the Regional Court (Arrondissementsrechtbank)

of The Hague, and requested that his expulsion be prohibited until a

decision had been given on his request for revision.

On 25 May 1983, the President of the Regional Court granted

the applicant's request. He found that it could not be said that

the applicant clearly was not a refugee.

On 1 July 1983, the Deputy Minister of Justice rejected the

applicant's request for revision. The Deputy Minister considered,

inter alia, that the applicant had not demonstrated that he risked

persecution for political reasons in Pakistan. Moreover, the Deputy

Minister found that certain evidence submitted by the applicant was

forged, and noted that the applicant had apparently been able to

obtain a passport and leave Pakistan without any difficulties.

The applicant thereupon appealed to the Council of State's

Division for Jurisdiction (Afdeling Rechtspraak van de Raad van State).

On 8 July 1985, the Council rejected the applicant's appeal.

The appeal was declared inadmissible insofar as it was directed

against the refusal of a residence permit, on the ground that the

applicant had not yet resided in the Netherlands for one year, and

since the decision had been taken in conformity with the advice of the

Consultative Committee on Aliens' Affairs (Adviescommissie

Vreemdelingenzaken).

With regard to the refusal to admit the applicant as a

refugee, the Council found that he had not demonstrated that his fear

of persecution in Pakistan was well-founded. In this respect, the

Council noted that the applicant could not be regarded as a prominent

member of the P.P.P. and that mere membership of that party did not

expose someone to persecution by the Pakistani authorities. Moreover,

the Council was not convinced that certain statements, which according

to the applicant had been made by his Pakistani lawyers, were

authentic. The Council also attached importance to the fact that the

applicant, apparently without any difficulty, had left Pakistan on

17 May 1982 with a valid passport which was stamped by Pakistani border

officials. Furthermore, the Council also had regard to the advice of

the representative of the United Nations High Commissioner for

Refugees, who had stated at the hearing, inter alia, that the

applicant's account was in itself inconsistent and differed

considerably from what was known about the situation in Pakistan.

The representative considered it unlikely that the applicant was a

refugee, although he did not want to exclude this possibility.

The applicant's present whereabouts are unknown, but his

lawyer has informed the Commission that she has been instructed to

pursue the application.

&_COMPLAINTS&S

The applicant claims, inter alia, that the Council of

State cannot be considered as an independent and impartial tribunal.

In addition, he complains about the working methods of the

representative of the United Nations High Commissioner for Refugees

concerning their consultative work in the course of the national

proceedings.

In this respect, he alleges a violation of Articles 6 para. 1

and 13 of the Convention.

Moreover, the applicant complains that his intended expulsion

to Pakistan violates Articles 3 and 5 para. 1 (f) of the Convention

insofar as it would constitute inhuman treatment and a disguised

extradition.

THE LAW

1. The applicant has complained that his expulsion would subject him to

inhuman measures contrary to Article 3 (Art. 3) of the Convention, which

provides:

"No one shall be subjected to torture or to inhuman

or degrading treatment or punishment. "

The Commission, however, finds that the applicant has failed

to substantiate his allegations in this respect, and this part of the

application must therefore be rejected as manifestly ill-founded

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

2. Furthermore, the applicant has complained that his intended

expulsion constitutes an extradition in disguise, and he has invoked

Article 5 para. 1 (f) (Art. 5-1-f) of the Convention, which provides:

"1. Everyone has the right to liberty and security

of person. No one shall be deprived of his liberty

save in the following cases and in accordance with

a procedure prescribed by law:

(f) the lawful arrest of a person to prevent his effecting

an unauthorised entry into the country or of a person

against whom action is being taken with a view to

deportation or extradition;"

The Commission, however, finds that the facts of the case as

submitted by the applicant do not raise any issue under this

provision, and this part of the application must therefore

also be rejected as being manifestly ill-founded within the meaning of

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

3. In addition, the applicant has complained that he did not

have a fair trial before an independent and impartial tribunal. In

this respect he has also complained about the working methods of the

United Nations High Commissioner for Refugees concerning their

consultative work in the course of the national proceedings. He has

invoked Article 6 para. 1 (Art. 6-1) of the Convention, which provides, inter

alia:

"1. 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

within a reasonable time by an independent and

impartial tribunal established by law...."

Insofar as the applicant's complaints relate to the working

methods of the United Nations High Commissioner for Refugees, the

Commission finds that the Council of State cannot be held responsible

for the working methods of people or institutions whose work is

strictly limited to giving non-binding advice. In particular it has

not been demonstrated that these working methods were such that the

Council of State violated Article 6 (Art. 6) of the Convention by taking the

advice of the United Nations High Commissioner into account. Therefore

this part of the application is manifestly ill-founded within the

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

4. Furthermore, the Commission has considered, in the context of

previous cases brought before it, the question of the applicability of

Article 6 para. 1 (Art. 6-1) of the Convention to deportation matters. The

Commission has held in those cases that a decision as to whether an

alien should be allowed to stay in a country is a discretionary act by

a public authority and that it does not involve as such the

determination of civil rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (cf. No. 8144/77, Dec. 2.5.1979, D.R. 17

p. 157).

It follows that Article 6 para. 1 (Art. 6-1) of the Convention is not

applicable to the proceedings before the Dutch courts in the present

case and that this part of the application must therefore be rejected

as incompatible ratione materiae with the provisions of the

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

5. Finally, the applicant has complained that he did not have an

effective remedy and has invoked Article 13 (Art. 13) of the Convention, which

provides:

"Everyone whose rights and freedoms as set forth

in this Convention are violated shall have an

effective remedy before a national authority

notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission, however, considers that the applicant cannot

be said to have had an arguable claim under the Convention and, in any

case, noting that the examination of the applicant's complaints by the

Council of State could have resulted in the quashing of the decision

of the Deputy Minister, finds that the appeal to the Council

constituted an effective remedy within the meaning of Article 13 (Art. 13) of

the Convention.

The remainder part of the application is therefore manifestly

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

Convention.

For these reasons, the Commission

DELARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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AKTHAR v. THE NETHERLANDS

AKTHAR v. THE NETHERLANDS