FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37633/97 by Abdulhalim OKTA against the Netherlands

The European Court of Human Rights (First Section) , sitting on 3 July 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 August 1997 and registered on 3 September 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Abdulhalim Okta, is a Turkish national of Kurdish origin , born in 1970 and living in Leiden (the Netherlands). He is represented before the Court by Mrs G.E.M. Later, a lawyer practising in the Hague.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 23 March 1994, the applicant applied for asylum in the Netherlands or a residence permit for compelling reasons of a humanitarian nature. On 29 August 1994, he was questioned by an immigration official for the reasons of his request for asylum. On 31 August and 28 September 1994, the applicant submitted corrections and additions to the report drawn up by the immigration official. He stated that he feared persecution for political motives.

On 4 April 1995, the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the applicant's requests. He was ordered to leave the Netherlands within four weeks. On 15 May 1995, the applicant filed an objection ( bezwaar ) with the State Secretary against this decision.

On 16 January 1996, the applicant was arrested in The Hague and detained on remand on suspicion of participation in the commission of assault on a Turkish national. On 18 June 1996, the public prosecutor informed the applicant that, for lack of evidence, no criminal proceedings would be taken against him.

On 24 June 1996, the applicant was heard before the Advisory Commission for Aliens' Affairs ( Adviescommissie voor Vreemdelingenzaken ) in relation to his objection.

On 29 November 1996, the State Secretary rejected the applicant's objection. On 23 December 1996, the applicant filed an appeal against this decision with the Hague Regional Court ( Arrondissementsrechtbank ). The State Secretary granted the applicant's appeal suspensive effect as to his expulsion to Turkey.

The Hague Regional Court, following a hearing held on 22 May 1997, rejected the applicant's appeal on 4 July 1997, including his complaint under Article 3 of the Convention. This decision was notified to the applicant on 17 July 1997.

In his letters of 6, 14 and 18 August, 11 and 19 September, and 29 October 1997, the applicant requested the State Secretary to reconsider his case and to grant him asylum.

By letter of 6 November 1997 the State Secretary informed the applicant that the proceedings on his asylum request had ended with the decision taken on 4 July 1997 by the Hague Regional Court and that it was open for him to file a fresh asylum request insofar as he considered that there were new facts and circumstances that had not been examined in the initial asylum proceedings and on the basis of which the outcome could be different.

On 20 November 1997, the applicant filed an objection with the State Secretary against the letter of 6 November 1997, which he considered to be a decision for the purposes of administrative law proceedings.

On 10 July 1998 the State Secretary declared the applicant's objection of 20 November 1997 inadmissible, holding that the contents of the letter of 6 November 1997 were merely of an informative nature and did not constitute a decision for administrative law purposes. The applicant was ordered to leave the Netherlands immediately.

The applicant filed an appeal with the Hague Regional Court. In the course of the appeal proceedings before the Hague Regional Court, the State Secretary withdrew the challenged decision and allowed the applicant to await the outcome of his request for reconsideration in the Netherlands. Consequently, the applicant withdrew his appeal before the Regional Court.

On 28 August 2000, noting that the State Secretary had not yet taken a decision on his request for reconsideration of his case, the applicant requested the State Secretary to grant him a residence permit as the proceedings had lasted longer than three years which, according to an established policy, would make him eligible for a residence permit. In this context, the applicant further submitted that also his wife had filed an asylum request in the Netherlands and that the appeal proceedings before the Hague Regional Court against the State Secretary's negative decision of 19 January 1998 on her request had been adjourned on 11 August 1999 on the basis of the decision that was to be taken in the case of the applicant.

COMPLAINTS

The applicant complains that his expulsion to Turkey will be contrary to his rights under Articles 2 and 3 of the Convention and Protocol No. 6.

THE LAW

The applicant complains that his expulsion to Turkey will be contrary to his rights under Article 2 (right to life) and Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment or punishment) and Protocol No. 6, which prohibits capital punishment.

The Court notes that the applicant has been granted permission to remain in the Netherlands pending the outcome of his request for a reconsideration of his case and that, so far, this request has not yet been determined.

In these circumstances, the Court considers that the applicant's complaints are premature as the proceedings on his request for a reconsideration of his case are still pending before the State Secretary of Justice whereas there is no indication that the applicant is facing an imminent risk of expulsion. It follows that the application must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Elisabeth Palm Registrar President