AS TO THE ADMISSIBILITY OF
Application No. 11769/85
by Tauseef AKTHAR
against the Netherlands
The European Commission of Human Rights sitting in private on
2 March 1987, the following members being present:
MM C.A NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
F. MARTINEZ
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 August 1985
by Tauseef Akthar against the Netherlands and registered on
30 September 1986 under file No. 11769/85;
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
applicant may be summarised as follows.
The applicant is a Pakistani citizen, born in 1952. At the
time of introducing the application he resided at Amsterdam, the
Netherlands.
In the proceedings before the Commission the applicant is
represented by Mrs. M.D. van Aller, a lawyer practising in Amsterdam.
The applicant claims that he has been a member of the Pakistan
People's Party (P.P.P.) since September 1970, and that he was an active
member of this party between 1970 and 1977.
He further claims that, after the political events in
Pakistan, he was arrested in June 1979 during a demonstration and that
he was kept in prison until September 1981. During this period he
contends that he was ill-treated.
Apparently because of efforts by his family, the applicant was
released, having signed a statement that he would undertake no further
activities on behalf of the P.P.P.
The applicant claims that subsequently he nevertheless
continued his activities on behalf of the P.P.P., and that he left
Pakistan on 17 May 1982 when the police were looking for him again.
According to the applicant, he then successively went to Iran,
Turkey, Bulgaria, Yugoslavia, Austria, Switzerland, France and
Belgium.
On, or about, 7 June 1982 the applicant came to the
Netherlands and on 9 August 1982 he reported himself to the police at
Den Helder requesting to be admitted as a refugee and to be given a
residence permit.
However, on 2 December 1982 the Deputy Minister of Justice
rejected the applicant's requests.
The Deputy Minister considered, inter alia, that the
applicant could not be regarded as a prominent opponent of the
military regime in his country, and that he had not substantiated his
allegations that he risked persecution in his home country.
The applicant thereupon introduced a request for revision,
which was initially granted suspensive effect. This suspensive effect
was then withdrawn because the applicant was said to have submitted
forged documents.
On 26 April 1983, the applicant initiated summary proceedings
before the President of the Regional Court (Arrondissementsrechtbank)
of The Hague, and requested that his expulsion be prohibited until a
decision had been given on his request for revision.
On 25 May 1983, the President of the Regional Court granted
the applicant's request. He found that it could not be said that
the applicant clearly was not a refugee.
On 1 July 1983, the Deputy Minister of Justice rejected the
applicant's request for revision. The Deputy Minister considered,
inter alia, that the applicant had not demonstrated that he risked
persecution for political reasons in Pakistan. Moreover, the Deputy
Minister found that certain evidence submitted by the applicant was
forged, and noted that the applicant had apparently been able to
obtain a passport and leave Pakistan without any difficulties.
The applicant thereupon appealed to the Council of State's
Division for Jurisdiction (Afdeling Rechtspraak van de Raad van State).
On 8 July 1985, the Council rejected the applicant's appeal.
The appeal was declared inadmissible insofar as it was directed
against the refusal of a residence permit, on the ground that the
applicant had not yet resided in the Netherlands for one year, and
since the decision had been taken in conformity with the advice of the
Consultative Committee on Aliens' Affairs (Adviescommissie
Vreemdelingenzaken).
With regard to the refusal to admit the applicant as a
refugee, the Council found that he had not demonstrated that his fear
of persecution in Pakistan was well-founded. In this respect, the
Council noted that the applicant could not be regarded as a prominent
member of the P.P.P. and that mere membership of that party did not
expose someone to persecution by the Pakistani authorities. Moreover,
the Council was not convinced that certain statements, which according
to the applicant had been made by his Pakistani lawyers, were
authentic. The Council also attached importance to the fact that the
applicant, apparently without any difficulty, had left Pakistan on
17 May 1982 with a valid passport which was stamped by Pakistani border
officials. Furthermore, the Council also had regard to the advice of
the representative of the United Nations High Commissioner for
Refugees, who had stated at the hearing, inter alia, that the
applicant's account was in itself inconsistent and differed
considerably from what was known about the situation in Pakistan.
The representative considered it unlikely that the applicant was a
refugee, although he did not want to exclude this possibility.
The applicant's present whereabouts are unknown, but his
lawyer has informed the Commission that she has been instructed to
pursue the application.
&_COMPLAINTS&S
The applicant claims, inter alia, that the Council of
State cannot be considered as an independent and impartial tribunal.
In addition, he complains about the working methods of the
representative of the United Nations High Commissioner for Refugees
concerning their consultative work in the course of the national
proceedings.
In this respect, he alleges a violation of Articles 6 para. 1
and 13 of the Convention.
Moreover, the applicant complains that his intended expulsion
to Pakistan violates Articles 3 and 5 para. 1 (f) of the Convention
insofar as it would constitute inhuman treatment and a disguised
extradition.
THE LAW
1. The applicant has complained that his expulsion would subject him to
inhuman measures contrary to Article 3 (Art. 3) of the Convention, which
provides:
"No one shall be subjected to torture or to inhuman
or degrading treatment or punishment. "
The Commission, however, finds that the applicant has failed
to substantiate his allegations in this respect, and this part of the
application must therefore be rejected as manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Furthermore, the applicant has complained that his intended
expulsion constitutes an extradition in disguise, and he has invoked
Article 5 para. 1 (f) (Art. 5-1-f) of the Convention, which provides:
"1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty
save in the following cases and in accordance with
a procedure prescribed by law:
(f) the lawful arrest of a person to prevent his effecting
an unauthorised entry into the country or of a person
against whom action is being taken with a view to
deportation or extradition;"
The Commission, however, finds that the facts of the case as
submitted by the applicant do not raise any issue under this
provision, and this part of the application must therefore
also be rejected as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. In addition, the applicant has complained that he did not
have a fair trial before an independent and impartial tribunal. In
this respect he has also complained about the working methods of the
United Nations High Commissioner for Refugees concerning their
consultative work in the course of the national proceedings. He has
invoked Article 6 para. 1 (Art. 6-1) of the Convention, which provides, inter
alia:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing
within a reasonable time by an independent and
impartial tribunal established by law...."
Insofar as the applicant's complaints relate to the working
methods of the United Nations High Commissioner for Refugees, the
Commission finds that the Council of State cannot be held responsible
for the working methods of people or institutions whose work is
strictly limited to giving non-binding advice. In particular it has
not been demonstrated that these working methods were such that the
Council of State violated Article 6 (Art. 6) of the Convention by taking the
advice of the United Nations High Commissioner into account. Therefore
this part of the application is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. Furthermore, the Commission has considered, in the context of
previous cases brought before it, the question of the applicability of
Article 6 para. 1 (Art. 6-1) of the Convention to deportation matters. The
Commission has held in those cases that a decision as to whether an
alien should be allowed to stay in a country is a discretionary act by
a public authority and that it does not involve as such the
determination of civil rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (cf. No. 8144/77, Dec. 2.5.1979, D.R. 17
p. 157).
It follows that Article 6 para. 1 (Art. 6-1) of the Convention is not
applicable to the proceedings before the Dutch courts in the present
case and that this part of the application must therefore be rejected
as incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
5. Finally, the applicant has complained that he did not have an
effective remedy and has invoked Article 13 (Art. 13) of the Convention, which
provides:
"Everyone whose rights and freedoms as set forth
in this Convention are violated shall have an
effective remedy before a national authority
notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission, however, considers that the applicant cannot
be said to have had an arguable claim under the Convention and, in any
case, noting that the examination of the applicant's complaints by the
Council of State could have resulted in the quashing of the decision
of the Deputy Minister, finds that the appeal to the Council
constituted an effective remedy within the meaning of Article 13 (Art. 13) of
the Convention.
The remainder part of the application is therefore manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DELARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)