FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59583/00 by Mahdi Bashir ARHIM against the Netherlands

The European Court of Human Rights (First Section) , sitting on 12 April 2001 as a Chamber composed of

Mr L. Ferrari Bravo , President , Mrs W. Thomassen , Mr Gaukur Jörundsson ,

Mr C. Bîrsan , Mr J. Casadevall , Mr B. Zupančič , Mr T. Panţîru , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced on 24 July 2000 and registered on 3 August 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Libyan national, born in 1968 and living in the Netherlands. He is represented before the Court by Mr T. Adank and Mr D. Gürses, both lawyers practising in Utrecht.

A. The circumstances of the case

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

On 2 December 1997, the applicant arrived in the Netherlands where he applied for asylum or, alternatively, a residence permit for compelling humanitarian grounds. On 5 February 1998, the applicant was interviewed by immigration official on the reasons for his asylum request.

On 28 September 1998, the applicant’s request were rejected by the State Secretary of Justice ( Staatssecretaris van Justitie ). The applicant’s objection ( bezwaar ) against this decision was rejected by the State Secretary on 21 July 1999. The applicant’s subsequent appeal to the Hague Regional Court ( Arrondissementsrechtbank ) sitting in Zwolle was dismissed on 10 February 2000.

The Regional Court noted that, in support of his asylum request the applicant submitted that his father had been arrested in 1978 for involvement in a trade union and that he had been released later, that his brother was detained since 1993 for opposition activities and that in this connection his family had been arrested and questioned on three occasions; the last time in 1995. As to his personal situation, the applicant had submitted that, since 1996, he had been a member of the illegal organisation “the Association for the Rights of the Libyan Citizen” which association collects and provides information about detained persons and acts as a go-between between detainees and their families. He had stencilled and copied pamphlets for this association at his work. His immediate superior in the association was Y., an internal security service officer. In August 1997, he had been informed that a travel prohibition had been issued against him and in September 1997 the association decided that he and another person, J., should leave the country. In October 1997, the applicant and J. obtained a visa in their passport via the Netherlands Embassy in Libya and, on 14 November 1997, they travelled by car to Tunisia from where they travelled by plane to Belgium. They were refused entry to Belgium and sent back to Tunisia. They subsequently travelled by plane to the Netherlands. After his departure from Libya, his brother had been arrested and released later.

The Regional Court held that the general situation in Libya was not as such that asylum seekers from Libya automatically qualified for asylum. It should therefore be established whether, on the basis of his personal situation, the applicant had founded reasons to fear persecution within the meaning of the 1951 Geneva Convention relating to the Status of Refugees.

The Regional Court did not find it established that the applicant had attracted the negative attention of the Libyan authorities in connection with his alleged activities for the association indicated. Noting that the applicant had left Libya in a lawful and controlled manner, it did not find it established that the applicant had been subject to travel prohibition. It further did not find it established that the applicant had left the country in an illegal manner. The Regional Court further noted that a link between the alleged travel prohibition and the applicant’s activities had remained unsubstantiated. It further noted that, after having learned of the alleged travel prohibition in August 1997, the applicant had remained at his permanent addresses and had encountered no problems from the side of the Libyan authorities until his departure from Libya on 14 November 1997.

The Regional Court further found it unlikely that an investigation against the applicant would have been conducted as from August 1997. On this point it rejected as unlikely that Y., a founder of the association and who allegedly held a high position in the Libyan internal security service, would have held further meetings with the applicant and other members of the association whilst the applicant would have been under investigation and the chances of discovery thus being real. This alleged approach of the Libyan authorities did not, in the court’s view, match the situation described by Amnesty International in its report of 1 July 1999, i.e. a ruthless suppression of any form of opposition.

As to applicant’s argument that he belonged to a family considered suspect by the authorities, the Regional Court noted that it had not appeared that, since 1995, the applicant’s family had encountered any problems from the side of the authorities whereas, until his departure, the applicant had worked in the public service. Without any further substantiation, this finding could not be altered by the fact that the applicant’s brother had been arrested after November 1997 and released later.

The Regional Court also rejected as not having been established that the applicant had evaded his military obligations by failing to respond to a summons for military retraining. This claim had remained fully unsubstantiated despite the fact that the applicant had contacts with his family on various occasions and the fact that the applicant’s brother had been in the Netherlands. Even assuming that the applicant would have in fact been summoned to report for military service, the Regional Court considered that it could not be concluded from an official report of 9 December 1996 of the Netherlands Ministry of Foreign Affairs nor from the Amnesty International report that it would be likely that the applicant, on grounds of failing to report for military service, would risk a disproportionate or discriminatory sanction. According to the Amnesty International Report, the sanction for such a failure was imprisonment for a maximum of three years and deprivation of civic rights for a maximum of ten years.

As to the applicant’s claim that an absence from Libya for an extended period of time is sufficient to attract the negative attention from the Libyan authorities, the Regional Court noted that, according to Amnesty International, it was not known whether Libyan nationals required permission for a lengthy stay abroad but that it could be expected that Libyan nationals, upon their return to Libya after a lengthy stay abroad, would be questioned by the security service. However, according to the Regional Court, this was insufficient to conclude that the applicant had founded fears for persecution.

In view of these findings, the Regional Court concluded that the applicant did not qualify for the status of refugee and that it had not been established that, if expelled to Libya, he would run a real risk of treatment contrary to Article 3 of the Convention. On the latter point, the Regional Court further held that it had not been established that the applicant, on grounds of a recognition by any public official or informer of the Libyan authorities in the Netherlands, had to fear treatment contrary to Article 3 upon his return to Libya. Insofar as the applicant argued that returned unsuccessful asylum seekers did run such a risk in Libya, the Regional Court noted that, according to the Amnesty International Report, suspected opponents of the Libyan authorities who had applied for asylum abroad did run the risk, when returned, to be tortured. However, the Regional Court did not find it established that the applicant was considered as an opponent by the Libyan authorities.

On 15 March 2000, the applicant was apprehended and placed in aliens’ detention ( vreemdelingenbewaring ) for the purposes of his expulsion. On 16 March 2000, the applicant filed a second asylum request. An immigration official interviewed him on 20 March 2000 on the reason for this second asylum request.

On 21 March 2000, the applicant filed a request for release from aliens’ detention with the Hague Regional Court sitting in ‘s-Hertogenbosch and to award him compensation for having been unlawfully detained.

On 31 March 2000, the State Secretary declared the applicant’s second asylum request inadmissible in that no other substantial grounds had been submitted by the applicant than those already examined in the proceeding on his first asylum request. The State Secretary decided that the applicant would not be allowed to remain in the Netherlands pending the outcome of a possible appeal.

By decision of 4 April 2000, the President of the Hague Regional Court sitting in ‘s- ­ Hertogenbosch ordered the applicant’s release from alien’s detention, holding that this had been unlawful given the absence of any indication that the applicant had sought ways to prevent his expulsion. The President awarded the applicant an amount of NLG. 2,700 in compensation for having been unlawfully detained.

On 6 April 2000, in violation of an agreement reached with him, the applicant failed to report himself to the Royal Constabulary ( Koninklijke Marechaussee ) at Schiphol Airport for his expulsion to Tunisia. It appeared that the applicant had left his known address for an unknown destination.

On 26 April 2000, the applicant filed an appeal with the Hague Regional Court sitting in ‘s-Hertogenbosch against the decision of 31 March 2000.

On 13 May 2000, acting upon a complaint filed by neighbouring women that they had been bothered by men living in a certain house in Apeldoorn, the police visited this house. One of the men found there was the applicant, who was subsequently placed in aliens’ detention.

On the same day the applicant filed a third request for asylum. After having been interviewed by an immigration officer on 16 May 2000, his third asylum request was rejected by the State Secretary on 17 May 2000.

The State Secretary noted that this third request was based on, inter alia , an article published in a Dutch regional daily newspaper on a protest action by the applicant’s friends in front of the Apeldoorn police station where the applicant had been detained. In this article, the applicant’s name is mentioned. The applicant claimed that he had obtained this article via a Tunisian friend in the Netherlands to whom this article had been sent by a person who had bought this newspaper at a newspaper stand in Tunisia. The applicant further claimed that the Libyan intelligence authorities were aware of this article. As this claim had remained unsubstantiated, the State Secretary did not find this fact established. Insofar as the applicant relied on other documents, the State Secretary held that these did not constitute substantially new facts or circumstances, or were or could have been submitted during the proceedings on the applicant’s previous asylum requests. The State Secretary finally did not find that the applicant would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if he would be returned to Libya.

The applicant’s expulsion to Libya was scheduled for 22 May 2000. However, physically resisting his expulsion, the applicant was refused access to the plane and he remained in the Netherlands.

On 26 May 2000, the applicant filed a request for release from aliens’ detention with the Hague Regional Court sitting in Haarlem.

In the meantime a new date for the applicant’s expulsion had planned, namely for 3 June 2000. This expulsion was cancelled as his passport could not be found. It was found again on 7 June 2000.

On 19 June 2000, the Hague Regional Court sitting in Haarlem rejected the applicant’s request for release from aliens’ detention.

On 20 July 2000, the Hague Regional Court sitting in Zwolle rejected the applicant’s appeal against the State Secretary’s decision of 31 March 2000.

In its decision of 3 August 2000, the President of the Hague Regional Court sitting in Zwolle accepted the applicant’s appeal against the State Secretary’s decision of 17 May 2000 on the applicant’s third asylum request and quashed this decision on grounds of a failure to state sufficient reasons for holding that the new documents submitted by the applicant – i.e. an article from a Libyan newspaper about the execution of seven Libyan nationals, a judgment and arrest warrant from Libya in connection with the applicant’s conviction of anti-government activities, the publicity around his case in the Netherlands, his conversion to Christianity and the worsened situation in Libya – did not constitute substantially new facts or circumstances, or were or could have been submitted during the proceedings on the applicant’s previous asylum requests.

However, as to the general situation in Libya, the President held that this point had already been examined in the proceedings having resulted in the decision of 10 February 2000 and that, since then, this situation had not seriously worsened.

The President further has doubts as to the value of the Libyan documents submitted by the applicant in that – in the first place – it had remained unclear how the applicant had obtained these “very secret” documents and also in the course of the hearing before the Hague Regional Court the applicant was unable to give a satisfactory explanation on this point. Secondly, these documents were presented as a judgment and arrest warrant against the applicant whereas it appeared from the translation that in fact it concerned an “information form” not disclosing the existence of a conviction. Finally, even assuming the veracity of the applicant’s claim that it dates back to 1998 but that he did not think that this would be needed for his asylum request, the President concluded that on that ground it could not be regarded as a new fact.

The President further consider rather incredible the applicant’s account that the Dutch regional newspaper article would have been found at a petrol station in Tunisia. The applicant’s subsequent account that this newspaper would have been bought at a newspaper stand in Tunisia was even more incredible. The President concluded that, in any event, it had not appeared that the Libyan authorities would have become aware of the contents of the article. The President further rejected as speculative, the applicant’s argument that he had become known to Libyan security officials who were in the Netherlands in connection with the Lockerbie trial. On this point, the President further considered that it had not appeared that the applicant had continued the activities undertaken in this country of origin. The President added that it would be unacceptable when an alien, whose personal history in itself did not give rise to an assumption of a founded fear for persecution, would be able to make a valid claim to asylum on the basis of subsequent activities that would have attracted attention. A risk thus created remains in principle to be borne by the person concerned.

As regards the applicant’s conversion to Christianity, the President noted that this had taken place more than two years ago and that therefore this argument could have been raised in the proceedings on the applicant’s first asylum request. As regards the Libyan newspaper article, the President held that this article did not concern the applicant and that there was no indication that his personal situation was comparable to that of the seven persons referred to in this article.

The President, therefore, concluded that the applicant did not meet the requirements for granting him refugee status and that there was no real risk of that he would be subjected to treatment contrary to Article 3 of the Convention if he would be expelled to Libya. For these reasons, the President decided that, although the decision of 17 May 2000 was quashed, its legal consequences were to remain entirely intact.

COMPLAINTS

The applicant complains that his expulsion to Libya is contrary to his rights under Article 3 of the Convention in that this will expose him to a real risk of being subjected to treatment contrary to this provision of the Convention. As this might entail a risk for this life, he further invokes Article 2 of the Convention and Protocol No. 6 to the Convention. The applicant also invokes on Article 5 of the Convention and Article 6 in conjunction with Article 13 of the Convention.

THE LAW

The applicant complains that, if expelled to Libya, he will face a real risk of being subjected to treatment contrary to Article 3 of the Convention as well as contrary to his rights under Article 2 of the Convention, which guarantees the right to life, and Protocol No. 6, which prohibits capital punishment.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens. Moreover, neither Article 3 of the Convention nor any other provision of the Convention guarantees the right of political asylum. However, expulsion by a Contracting Party may give rise to an issue under Article 3 and thus engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see the Chahal v. United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74).

In its assessment of the risk of ill-treatment the Court has considered the following principles to be relevant:

i. In determining whether substantial grounds have been shown for believing that a real risk of treatment contrary to Article 3 exists, the Court will assess the issue in the light of all the material placed before it or, if necessary, material obtained proprio motu (cf. Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, § 75).

ii. The assessment of the existence of the risk must be made on the basis of information currently available (Chahal v. the United Kingdom, loc. cit., § 89).

iii. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case. A mere possibility of ill-treatment is not in itself sufficient (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, §§ 107 and 111).

The Court has noted the thorough examination of the applicant’s account and submissions by the Hague Regional Court in the course of the proceedings on the applicant’s three subsequent requests for asylum. The Court cannot consider the findings reached by the Hague Regional Court in these proceedings to be arbitrary or unreasonable.

The Court considers that the applicant’s alleged activities for the association of which he claimed to be a member as well as his claim of being actively searched for by the Libyan authorities on grounds of these activities have remained unsubstantiated. On this point the Court observes that the origin of the secret document relied on by the applicant as well as the manner in which he has obtained it have remained unexplained. The Court is further not convinced by the applicant’s argument made in the last set of proceedings before the Hague Regional Court that he did not think that this document was relevant for the assessment of his asylum request.

In these circumstances, the Court is of the opinion that the applicant’s submissions concerning his personal situation as well as the general situation in Libya do not disclose that his personal situation exposes him, if expelled to Libya, either to a threat to his life or to a risk of being subjected to treatment contrary to Article 3 of the Convention.

Accordingly, it follows that this part of the application must be rejected under Article 35 § 3 of the Convention as being manifestly ill-founded.

2. The applicant has also invoked Article 5 (right to liberty and security) and Article 6 (right to a fair trial) in conjunction with Article 13 (right to an effective remedy) of the Convention.

As this part of the application has remained fully unsubstantiated and in the absence of any indication that the applicant’s rights under these provisions of the Convention have been disrespected, the Court is of the opinion that also this part of the application must be rejected under Article 35 § 3 of the Convention as being manifestly ill-founded.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Luigi Ferrari Bravo Registrar President