Lexploria

The European Commission of Human Rights sitting in private on 13 May

1986, the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 11 June 1985 by

K.K. against the Netherlands and registered on 12 June

1985 under file No. 11569/85 ;

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 parties, may

be summarised as follows:

The applicant is a Turkish citizen, born in 1960 at Hozat, Turkey. He

resides at Amsterdam, the Netherlands. In the proceedings before the

Commission, he is represented by Mrs. E. Akkermans, a lawyer

practising at Rotterdam.

It appears that the applicant, who is a Kurd, was a founding member of

the association Halk-Der (a subdivision of the DEV-Genc) at Hozat and

was a member of the board of this association. The applicant claims

that DEV-Genc is the forerunner of the student movement in Turkey.

In 1979, the applicant was apparently arrested by the police at Elarig

for having participated in a prohibited manifestation. He claims that

he was detained for 23 days in the so-called quarter "1800", before he

was brought before a judge. He was subsequently released for lack of

evidence.

The applicant has submitted that his organisation was not illegal

before the political events of 12 September 1980 but that it was not

allowed to engage in political activities. After this date, however,

all members of the board were arrested by the military and only the

applicant managed to escape.

A brother of the applicant, who apparently belonged to a leftist

organisation, appears to have been killed by the police on 19 June

1982 during an attempt to arrest him.

It further appears that the applicant resided in the Federal Republic

of Germany, at Böblingen, from 13 July 1980 until 10 July 1984. His

request for asylum was rejected in first instance and the applicant

claims that he did not await the result of a further request

(Folgeantrag) since he had no confidence in the German authorities and

that he therefore went to the Netherlands.

On 19 November 1984, the applicant requested either to be admitted to

the Netherlands as a refugee or to be given a residence permit based

on political asylum.

However, both requests were rejected on 3 May 1985 by the Deputy

Minister of Justice, who considered, inter alia, that the

trustworthiness of the applicant's declaration appeared doubtful since

he had not informed the authorities of his stay in the Federal

Republic of Germany before his arrival in the Netherlands but had

stated that he had come to the Netherlands direct from Turkey. The

applicant had also failed to give an explanation for this false

information. The Deputy Minister, moreover, considered that a letter

dated 30 July 1984 addressed to the applicant's father, which should

have demonstrated that the applicant was wanted by the authorities,

did not contain personal data which fitted the applicant. In

addition, even assuming that the applicant would be a refugee, he

could have obtained adequate protection against refoulement to Turkey

in the Federal Republic of Germany which was the first country that

received him.

The applicant, thereupon, introduced a request for revision on 14 May

1985. Since this request was not given suspensive effect, the

applicant initiated summary procedings (kort geding) before the

President of the Regional Court (Arrondissementsrechtbank) of

Amsterdam to obtain an order that he would not be expelled until a

decision had been taken on his request for revision.

On 9 July 1985, the representative of the United Nations High

Commissioner for Refugees in the Netherlands informed the applicant's

lawyer that the applicant had failed to participate in the proceedings

before the Administrative Court (Verwaltungsgericht) of Stuttgart. The

representative also noted that the applicant had given three, rather

different, explanations of why he feared persecution in Turkey, which

had raised doubts as to the sincerity of his request for asylum.

However, on 6 June 1985, the President rejected the applicant's

request since the applicant could have obtained adequate protection in

the Federal Republic of Germany, which had to be considered as the

country that first received him.

The President, moreover, considered that no facts or circumstances had

been demonstrated which would warrant the conclusion that the Deputy

Minister of Justice was acting in contravention of the law by not

granting suspensive effect to the applicant's request for revision

which had no reasonable prospect of success.

It appears that the applicant has since been in hiding.

COMPLAINTS

The applicant complains that he has reason to fear that he would be

subjected to treatment contrary to Article 3 (Art. 3) of the

Convention if he were to be expelled to Turkey. He alleges that the

Netherlands authorities would thus be indirectly responsible for a

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

The applicant contends that he engaged in the same political

activities as his brother who was killed by the police in 1982, and

claims that he, too, is being looked for by the Turkish authorities.

He has submitted a document dated 30 July 1984, from which it appears

that his father has been asked to disclose his whereabouts, and has

been threatened with prosecution if he failed to hand his son over to

the authorities.

The applicant has also submitted a declaration by the Amsterdam

division of Halk-Der that his life would be in danger if he were

expelled to Turkey. In addition, he has submitted a declaration by

his cousin and another person, who reside in the Netherlands but

visited Turkey during their holidays, to the effect that the applicant

is being looked for by the military authorities and that his father

and relatives are regularly questioned as to his whereabouts.

The applicant also claims that the Kurdish population in Turkey has

recently been systematically oppressed both politically and

economically.

Finally, the applicant claims that he participated in political

activities against the Turkish Government in the Federal Republic of

Germany and took part in demonstrations organised by the Halk-Der.

Turkish journalists are known to take photographs of demonstrators

and, according to the applicant, the Turkish secret service is

certainly aware of his political activities in the Federal Republic of

Germany.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 June 1985 and registered on 12

June 1985.

On 12 June 1985, the President decided to indicate to the Netherlands

Government, in accordance with Rule 36 of the Commission's Rules of

Procedure, that it was desirable in the interest of the parties and

the proper conduct of the proceedings before the Commission to refrain

from expelling the applicant to Turkey until the Commission had had an

opportunity to examine the application during its session in July

1985.On 14 June 1985, the Rapporteur requested the Netherlands Government

to provide information concerning the reasons for the decision to

expel the applicant to Turkey.

On 28 June 1985, the Government submitted the requested information,

and the applicant's comments in reply were submitted on 9 July 1985.

On 12 July 1985, the Commission decided not to renew the indication

under Rule 36 of its Rules of Procedure. The Commission further

decided to invite the respondent Government pursuant to Rule 42 para.

2, sub-para. b of its Rules of Procedure to submit written

observations on admissibility and merits before 31 October 1985.

The Government's observations were submitted on 29 October 1985, the

applicant's observations in reply on 5 December 1985.

On 13 January 1986, the Government informed the Commission that they

would prefer to submit any further observations in writing.

SUBMISSIONS OF THE PARTIES

A. The Government

(a) Exhaustion of domestic remedies

The Netherlands Government take the view that domestic remedies as

referred to in Article 26 (Art. 26) of the Convention have been

exhausted by the applicant. His complaint relates to his deportation

from the Netherlands but the same complaint was rejected by the

President of the Regional Court of Amsterdam, giving judgment on an

application for summary proceedings on 6 June 1985. This judgment was

confirmed upon appeal by the Court of Appeal of Amsterdam on 17

October 1985.

(b) The facts

The Netherlands Government express serious doubts concerning the

veracity of the applicant's account of the facts. These doubts have

since been strengthened by the facts stated in the further request for

asylum (Asylantrag-Nachfolgeantrag) of 18 September 1984 submitted to

the authorities in the Federal Republic of Germany on behalf of the

applicant. The latter petition e.g. states a reason for leaving his

country which differs significantly from that which the applicant gave

to the aliens' police in Rotterdam two months later, as indicated in

the police report of 5 December 1984.

The Government submit that it has in the meantime become apparent that

the applicant has evaded the supervision of the aliens' police. His

current place of residence in the Netherlands is unknown. If it should

be discovered in the near future, the applicant will be deported,

unless he chooses to leave the country voluntarily.

(c) The law

Article 3 (Art. 3) of the Convention

The applicant believes that his deportation to Turkey by the

Netherlands Government would constitute a violation of Convention

because he says that he has reasons to fear treatment contrary to that

provision in that country. In particular, the applicant claims that

he fears detention in what he calls one of the concentration camps for

Kurds or immediate imprisonment.

Quite apart from the aforementioned contradiction between the stories

told by the applicant in Germany and later in the Netherlands

concerning his flight, and disregarding the doubts to which this gives

rise as regards the veracity of the applicant's claims, it is evident

that the applicant left his country before the coup of 1980 and that

he was never convicted of the activities referred to in the

application. On the contrary, he was released for lack of evidence.

In the view of the Netherlands Government there is no reason to

believe that the applicant has grounds to fear persecution on account

of his activities, particularly when one considers their limited

nature and extent and the time at which they took place. The

representative of the United Nations High Commissioner for Refugees in

The Hague likewise has doubts about the various stories concerning the

applicant's flight, in addition to which he criticises the applicant's

uncooperative attitude with regard to his application for asylum in

the Federal Republic of Germany. On the grounds of the documents

submitted both by the applicant and by the Netherlands Government, the

representative of the UNHCR does not conclude that the applicant is a

refugee.

As regards the other facts mentioned by the applicant, the Netherlands

Government would observe that they are formulated in such general

terms that it is impossible to conclude from them that he has

justified reasons to fear persecution.

In the past the Commission has repeatedly found that, in exceptional

cases, deporting or extraditing a person to a particular state may

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

However, the person concerned must be able to show that he has serious

reasons (see X. v. the Federal Republic of Germany, Dec. No. 6315/73,

30.9.74, DR 1, p. 73) or substantial grounds (cf. Lynas v.

Switzerland Dec. No. 7317/75, 6.10.76, DR 6, p. 141) to fear such

treatment. Moreover, in cases in which an applicant claims that he is

in danger of being subjected to treatment contrary to Article 3

(Art. 3) of the Convention there must be an objective danger to the

applicant (see Altun v. the Federal Republic of Germany, Appl. No.

10308/83, Decision of 3 May 1983, and Siddique v. the Netherlands,

Appl. No. 10633/83, Decision of 5 March 1984). In the view of the

Netherlands Government, the applicant has not been able to show

convincingly enough either that such serious or substantial reasons

exist or that there is such an objective danger.

On the above grounds, the Netherlands Government take the view that

the application must be regarded as manifestly ill-founded within the

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

B. The applicant

The applicant refers to his earlier submissions. He draws attention

to the fact that the representative of the United Nations High

Commissioner for Refugees in the Netherlands did not conclude that he

was not a refugee but only that some clarifications were required.

THE LAW

The applicant has complained that he would be subjected to treatment

contrary to Article 3 (Art. 3) of the Convention if he were expelled

to Turkey. Article 3 (Art. 3) of the Convention provides that

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

treatment or punishment. "

The Commission notes that the applicant has failed to clarify certain

contradictions in his respective statements to the authorities in the

Federal Republic of Germany and the Netherlands authorities. In the

Commission's view, this creates doubts about the facts upon which the

applicant bases his affirmation that he might be subjected to

treatment contrary to Article 3 (Art. 3) of the Convention, if he were

expelled to Turkey.

Under these circumstances, the Commission finds that the applicant has

failed to substantiate his allegations about the risks he would run,

if expelled to Turkey. In addition, the Commission does not find that

there are sufficient indications of a general nature which would lend

credence to the applicant's claim that he risks being subjected to

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

to Turkey.

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 reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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K. v. THE NETHERLANDS

K. v. THE NETHERLANDS

LEXI