AS TO THE ADMISSIBILITY OF

                      Application No. 15185/89

                      by K.S.

                      against the Netherlands

      The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

             MM.  S. TRECHSEL, President of the Second Chamber

                  G. JÖRUNDSSON

                  A. WEITZEL

                  H. G. SCHERMERS

                  H. DANELIUS

             Mrs. G. H. THUNE

             MM.  F. MARTINEZ

                  L. LOUCAIDES

                  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

             Mr.  K. ROGGE, Secretary to the Second Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 22 June 1989 by

K.S. against the Netherlands and registered on 30 June 1989 under file

No. 15185/89;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a Malaysian national, born in 1947, and at

present resident in Delft.  In the procedure before the Commission he

is represented by Mrs. G.E.M. Later, a lawyer practising in The Hague.

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

summarised as follows:

      In April 1984, the applicant arrived in the Netherlands and was

arrested in possession of an important amount of heroin.  During the

investigation, a Dutch investigating team travelled to Malaysia and

heard some witnesses who were detained there.  On 21 August 1984 the

Amsterdam Regional Court (Arrondissementsrechtbank) convicted him of

importing heroin and sentenced him to nine years' imprisonment.

      During the applicant's detention, his passport was sent back to

the Malaysian embassy.  This implied that the applicant would be given

a Malaysian laissez-passer in order to return to Malaysia.

      On 28 January 1986, the Deputy Minister of Justice

(Staatssecretaris van Justitie) declared the applicant to be an

"undesirable alien" (ongewenste vreemdeling), on the basis of the

stipulations of Section 21 of the Aliens Act (Vreemdelingenwet).  The

applicant's request for a review of this decision was rejected on 8

October 1986.  A subsequent appeal before the Council of State (Raad

van State) was rejected by a judgment of 6 January 1989.

      On 8 March 1990, the applicant requested a residence permit on

humanitarian grounds.  On 25 April 1990, the Deputy Minister of Justice

rejected the request.  On 29 May 1990, the applicant requested a review

of the decision and asked for suspensive effect to be granted to that

appeal.  On 25 June 1990, the Deputy Minister of Justice refused to

grant suspensive effect to the appeal.  Since the Deputy Minister of

Justice has not given a decision on the request itself within the

prescribed time-limit of three months, the applicant appealed to the

Council of State against the Minister's fictitious rejection of the

request for a review of the decision of 25 April 1990.  This appeal was

still pending at the time of the present decision.

      On 19 July 1990, the applicant introduced summary proceedings

with the President of the Regional Court of The Hague requesting him

to grant suspensive effect to his appeal to the Council of State and

to his application to the Commission, invoking Articles 3, 5, 6 and 13

of the Convention and Article 1 of Protocol No. 6.

      On 1 May 1991, the President of the Regional Court of The Hague

rejected the applicant's request, referring, inter alia, to an

inadmissibility decision of the Commission given on 16 January 1991 in

a similar case (No. 15216/89 dec. 16.1.91, unpublished, in the

applicant's co-accused's case).  On 8 May 1991, the applicant appealed

to the Court of Appeal (Gerechtshof) of The Hague.  This appeal was

still pending at the time of the present decision.

COMPLAINTS

1.    The applicant complains under Articles 3 and 6 of the Convention

and Article 1 of Protocol No. 6 that, if deported to Malaysia, he will

most probably be prosecuted there for drug trafficking, for which he

will receive the death penalty.  He refers to Section 39 (B) of the

Malaysian Dangerous Drugs Act of 1952, as amended in 1983, which reads

as follows:

      "(1). No person shall, on his own behalf or on behalf of any

            other person, whether or not such person is in Malaysia:

                (a) traffic in a dangerous drug;

                (b) offer to traffic in a dangerous drug; or

                (c) do or offer to do an act preparatory to or for the

                    purpose of trafficking in a dangerous drug.

      (2).  Any person who contravenes any of the provisions of

            subsection (1) shall be guilty of an offence against this

            Act and shall be punished on conviction with death."

      He submits that the Malaysian authorities are aware of his

situation in the context of rogatory proceedings in which some

witnesses were heard in Malaysia and by the fact that his passport was

sent back to the Malaysian embassy.  He furthermore refers to

information given by some relatives and friends that the Malaysian

authorities have been quite interested in him for some time.

      The applicant further complains that on the basis of either the

above-mentioned Act, the Dangerous Drugs Special Preventive Measures

Act or the Internal Security Act, he almost certainly will be

arbitrarily detained without any form of due process, which detention

can be prolonged indefinitely for periods of two years.  He adds that

the detention is ordered by a member of the Government.  He invokes

Articles 3 and 5 of the Convention.

2.    The applicant also complains that, in the proceedings concerning

his request for the review of the decision to declare him an

"undesirable alien", the proceedings concerning his residence permit

and the summary proceedings, his arguments under Articles 3 and 5 of

the Convention and Article 1 of Protocol No. 6 were never taken into

account.  Invoking Article 6 of the Convention, he submits that he has

not received a fair hearing.

3.    The applicant also explains that since his conclusive arguments

under Articles 3 and 5 of the Convention and Article 1 of Protocol No.

6 were never taken into account by the Dutch authorities, he has not

had an effective remedy for his complaints concerning the alleged

violation of the above provisions.  He invokes Article 13 of the

Convention in conjunction with the above provisions.

      The applicant further complains that the Dutch authorities sent

his passport to the Malaysian authorities, thereby alerting them to his

conviction for importation of heroin.  They have thereby created

problems for him upon his return to Malaysia and made it impossible for

him to seek residence elsewhere.  He submits that this is not a normal

procedure as applied to other foreign detainees.  He invokes Article

14 of the Convention in conjunction with Article 5 of the Convention.

4.    The applicant also seems to consider that there is a violation

of Protocol No. 7.

THE LAW

1.    The applicant complains that, if deported to Malaysia, he will

probably be prosecuted there for drug trafficking, for which he will

receive the death penalty.  He submits that since the Malaysian

authorities have been alerted about him, he risks detention without due

process upon his return, which detention can be prolonged indefinitely.

He invokes Articles 3, 5 and 6 of the Convention and Article 1 of

Protocol No. 6 (Art. 3, 5, 6, P6-1).

      The Commission has examined these complaints under Article 3 of

the Convention and Article 1 of Protocol No. 6 (Art. 3, P6-1) to the

Convention.

      Article 3 (Art. 3) of the Convention states:

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

      degrading treatment or punishment."

      Article 1 of Protocol No. 6 (P6-1) to the Convention states:

      "The death penalty shall be abolished.  No one shall be

      condemned to such penalty or executed."

      The Commission recalls the case-law of the Convention organs

according to which the right of an alien to reside in a particular

country is not as such guaranteed by the Convention.  However, the

decision of a Contracting State to deport a person may give rise to an

issue under Article 3 (Art. 3) of the Convention, and hence engage the

responsibility of that State under the Convention, where there is a

risk that a person, if deported, will be subjected to treatment

contrary to Article 3 (Art. 3) of the Convention in the receiving

country (see Eur. Court H.R., Cruz Varas judgement of 20 March 1991,

Series A n° 201, para. 91; No. 12102/86, Dec. 9.5.86, D.R. 47 p. 286).

      The question arises whether analogous considerations apply to

Article 1 of Protocol No. 6 (P6-1) to the Convention, in particular

whether this provision equally engages the responsibility of a

Contracting State where, upon deportation, the person concerned faces

a real risk of being subjected to the death penalty in the receiving

State.  The question also arises whether, if Article 1 of Protocol No.

6 (P6-1) cannot engage the responsibility of a Contracting State in

such circumstances, Article 3 (Art. 3) of the Convention may serve to

prohibit deportation to a country where the person concerned may be

subjected to the treatment complained of.

      However, the Commission need not resolve these issues since the

complaints at issue are in any event manifestly ill-founded.

      The Commission points out that the applicant no longer has a

passport and will be obliged to return to Malaysia in the event of an

execution of the deportation order.  Moreover, the applicant has

pointed out that the Malaysian authorities have been made aware of his

situation.  He has also referred to general information on the

situation in Malaysia and to some information about his personal

situation given by some relatives and friends.

      The Commission notes that in order to establish the risk of a

violation of Article 1 of Protocol No. 6 and Article 3 (P6-1, 3) of the

Convention, substantial grounds have to be shown for believing that the

person concerned faces a real risk of being subjected to the treatment

complained of (see Eur. Court H.R., Soering judgment of 7 July 1989,

Series A n° 161, p. 35, para. 91; Eur. Court H.R., Cruz Varas judgment,

loc. cit., p. 28, para. 69-70; Eur. Court H.R., Vilvarajah judgment of

30 October 1991, para. 103, to be published in Series A No. 215).

      In the present case, the applicant claims that, upon his return

to Malaysia, he will be prosecuted and eventually subjected to the

death penalty for illicit drug traffic.

      The Commission first observes that the applicant was already

convicted in the Netherlands of drug offences on 21 August 1984.  The

Commission further recalls its decision of 16 January 1991 in a case

raising a similar issue (No. 16531/90, Dec. 16.1.1991, to be published)

where it noted that the applicants had not shown any case where a

person has been convicted and subjected to the death penalty in

Malaysia following his conviction for the same offence elsewhere.  Nor

has the present applicant submitted any such evidence.

      Furthermore, the Commission, referring to its above-mentioned

decision of 16 January 1991, is of the opinion that the applicant did

not give precise information about the specific conditions of the

detention which he himself risks undergoing upon his return.

      The applicant has therefore not shown substantial grounds which

would enable the Commission to conclude that he will be subjected to

treatment in violation of Article 1 of Protocol No. 6 or Article 3

(P6-1, 3) of the Convention.

      The applicant has also failed to provide sufficient

substantiation with regard to his allegations on the risk to be

detained and the conditions thereof in Malaysia.

      As a result, the complaints do not disclose any appearance of a

violation of the rights set out in Articles 3, 5 and 6 (Art. 3, 5, 6)

of the Convention or Article 1 of Protocol No. 6 (P6-1).  It follows

that in this respect the application is manifestly ill-founded within

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

2.    The applicant also complains that in the various proceedings he

has introduced in the Netherlands, his arguments under Articles 3 and

5 of the Convention and Article 1 of Protocol No. 6 (Art. 3, 5, P6-1)

were never taken into account.  Invoking Article 6 (Art. 6) of the

Convention, he submits that he has not received a fair hearing.

      However, Article 6 para. 1 (Art. 6-1) of the Convention does not

apply to the incriminated proceedings, which concern either expulsion

(cf. No. 8118/77, Dec. 19.3.81, D.R. 25, p. 105; No.9990/82, Dec.

15.5.84, D.R. 39, p. 119) or the question whether an alien should be

allowed to stay in a particular country (cf No. 8244/78, Dec. 2.5.79,

D.R. 17, p. 157; No. 9285/81, Dec. 6.7.82, D.R. 29, p. 205).

      It follows that this part of the application must be rejected as

being incompatible ratione materiae with the provisions of the

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

Convention.

3.    Furthermore, the applicant alleges a violation of Article 13

(Art. 13) of the Convention since his arguments under Articles 3 and

5 of the Convention and Article 1 of Protocol No. 6 (Art. 3, 5, P6-1)

were not taken into account in the proceedings in the Netherlands.  He

relies on Article 13 (Art. 13) of the Convention in conjunction with

these provisions.  Under Article 14 of the Convention in conjunction

with Articles 3 and 5 of the Convention and Article 1 of Protocol No.

6 (Art. 14+3+5, P6-1) the applicant complains that the Aliens  Police

sent his passport to the Malaysian authorities.  He submits that this

procedure is not applied to other foreign detainees.

      The Commission has examined these remaining complaints as they

have been submitted by the applicant.  However, after considering the

complaints as a whole, the Commission finds that they do not disclose

any appearance of a violation of the provisions invoked by the

applicant.  It follows that the remainder of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4.    The applicant also seems to consider that there is a violation

of Protocol No. 7 (P7).

      However, the Commission notes that the Netherlands are not a

Party to Protocol No. 7 (P7).

      It follows that the application is in this respect incompatible

ratione personae with the provisions of the Convention.

      For these reasons, the Commission unanimously

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber     President of the Second Chamber

         (K. ROGGE)                         (S. TRECHSEL)