Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16703/90

by N.E.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 July 1990, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ RUIZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. J. RAYMOND, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 9 June 1990 by

N.E. against the Netherlands and registered on 11 June 1990

under file No. 16703/90;

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 applicant is a national of Zaire born in 1963. He is

apparently a professional actor and a student. He is at present

resident in Anna Paulowna, the Netherlands. Before the Commission he

is represented by Mr. L.B.J. Movig, a lawyer practising in Den Helder.

The facts as submitted by the applicant may be summarised as

follows.

The applicant was apparently enrolled as a student at the

"Institut Supérieur des Techniques Appliquées" at Kinshasa, Zaire. He

appears to have completed his studies there in 1989. As an actor he

took part in plays which criticize the Government of Zaire. He was

also responsible for the public relations of this theatre group, which

was made up of students and performed for students.

On 25 February 1989, during a period of student unrest in

Kinshasa, the applicant was arrested by the "Brigade Spéciale de

Recherche et de Surveillance" (BSRS), and detained at the "CIRCO"

military barracks.

In these barracks, the applicant was beaten upon arrival, with

batons. He was placed in a cell of 2 x 4 metres with approximately 30

occupants. The first four days he received no food. The cell had no

windows nor toilet facilities. During his time in this cell, the

applicant was not beaten or otherwise mistreated. He was never

charged with a crime, nor did he consult a lawyer.

On 29 April 1989 he was transferred to the General Hospital of

Kinshasa because he had contracted malaria. On 20 May 1989, a public

holiday, he managed to escape from the hospital and then went into

hiding. Through the help of a friend, the applicant's uncle procured

a passport under a false name and an airline ticket to Brussels.

On 3 June 1989 he flew to Brussels, where he handed the false

passport and ticket to a person who had accompanied him. On 4 June

1989 he got a lift to Goes, the Netherlands, where, on 5 July, he

requested asylum. He was in possession of the following identity

documents:

a. Zaire identity card issued 23 July 1980,

b. "Carte d'Artiste" (actor's identity card) issued

8 March 1989,

c. Birth certificate issued 11 August 1986.

On 28 September 1989 the Deputy Minister of Justice rejected

the applicant's asylum request and refused to grant him a residence

permit. It was considered, inter alia, that the applicant had not been

politically active and that his story was vague and not entirely

credible. The applicant requested a review of this decision, but this

appeal was not granted suspensive effect for his expulsion.

He instituted summary proceedings requesting suspensive effect

for his appeals. On 8 June 1990 this was refused by the President of

the Regional Court of The Hague. The President considered, inter

alia, that the authorities of Zaire appeared to be treating students

harshly. However, the applicant's identity card of 23 July 1980

states that he is an "employee". Furthermore, the "Carte d'Artiste",

which was issued while he claims to have been in detention states

"comédien, chargé de rel. publ. Discipline: Théatre", which seems to

imply that he is a professional actor. Therefore it would not appear

that he has to fear being treated as a dissident student by the

authorities in Zaire. Finally, the President considered that the

applicant did not face a real risk of treatment as prohibited by

Article 3 of the Convention.

COMPLAINTS

The applicant complains that, if returned to Zaire, he will

face prosecution for having escaped from the hospital where he was

detained. Furthermore, as a dissident student he faces harsh and

inhuman treatment at the hands of the authorities of Zaire. He

submits numerous articles of the press and statements by Amnesty

International to illustrate the violent reprisals by the Zaire

authorities of student demonstrations, notably in Kinshasa in February

1989 and in Lubumbashi in April and May 1990. He also submits that

the Belgian Government is investigating the situation in Zaire with a

view to reviewing its policies in accordance with respect for human

rights in Zaire. The applicant invokes Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 June 1990 and registered

on 11 June 1990.

On 12 June 1990 the Acting President of the Commission decided

not to make an indication under Rule 36 of the Rules of Procedure to

the respondent Government that the applicant not be expelled to Zaire

pending the Commission's examination of the application. The applicant

was invited to submit further information regarding the risks which he

faced in Zaire. He submitted this information on 26 June 1990.

THE LAW

The applicant complains that if returned to Zaire he will be

prosecuted for having escaped from custody and will be ill-treated for

his dissident activities with a student theatre group. He invokes

Article 3 (Art. 3) of the Convention. This provision reads as follows:

"No one shall be subjected to torture or to inhuman

or degrading treatment or punishment."

The Commission recalls that the extradition of a person may

give rise to an issue under Article 3 (Art. 3) of the Convention, and

hence engage the responsibility of the extraditing State under the

Convention, where substantial grounds have been shown for believing

that the person concerned, if extradited, faces a real risk of being

subjected to torture or to inhuman or degrading treatment or

punishment in the country of destination (cf. Eur. Court H.R.,

Soering judgment of 7 July 1989, Series A no. 161, para. 91 p. 35).

This also applies, mutatis mutandis, to expulsion.

In the present case, the Commission notes that both the Deputy

Minister of Justice and the President of the Regional Court in summary

proceedings considered that the applicant's story was not entirely

credible.

From the applicant's submissions it is not clear whether or

not he had completed his studies. Nor is it clear whether he was

involved in the theatre group in a professional capacity or as a

student.

Furthermore, it appears from the articles of the press and the

statements by Amnesty International as submitted by the applicant that

the harsh behaviour of the authorities of Zaire towards students only

manifests itself during periods of student demonstrations and unrest.

It was during such a period that the applicant claims to have been

arrested, and the Commission notes that he was never formally charged.

In these circumstances the Commission considers that the

grounds which the applicant presents in support of his complaint are

not sufficient to substantiate the conclusion that he faces a real

risk of being subjected to treatment as referred to in Article 3

(Art. 3) of the Convention, if returned to Zaire.

Therefore, the Commission finds that the application is

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

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J.A. FROWEIN)

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N.E. v. THE NETHERLANDS

N.E. v. THE NETHERLANDS

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