AS TO THE ADMISSIBILITY OF
Application No. 14209/88
by A. and others
against the Netherlands
The European Commission of Human Rights sitting in private
on 16 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER 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 26 August 1988
by A. and others against the Netherlands and registered on 12
September 1988 under file No. 14209/88;
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 applicants are 23 persons of Surinamese nationality who,
on the date of registration of this application were all staying in
the Netherlands. Their particulars are set out in the appendix. In
the procedure before the Commission they are represented by Mr. B.R.
ANGAD-GAUR, a lawyer practising in the Hague.
The facts as submitted by the applicants may be summarised as
follows:
Surinam became independant of the Netherlands in 1975. In
accordance with the agreements concluded at the time between the two
states, the applicants became citizens of Surinam.
In 1982 a military coup took place which overthrew the
democratic civilian Government in Surinam. Soon thereafter a flow of
political refugees commenced from Surinam to the Netherlands. In 1985
the resistance against the military Government grew into a civil war.
With many others, the applicants fled Surinam at this time.
Due to the large influx of Surinamese, and the difficult
situation in that country, the Netherlands Government decided in
December 1986 not to apply the usual rules governing the granting of
residence permits. Instead, all incoming Surinamese, including the
applicants, were to be tolerated in the Netherlands until such time as
the political situation in Surinam would have stabilised. Their
requests for political asylum and residence permits were suspended for
the time being. Only obviously serious cases were still examined and
only in such cases were residence permits granted.
In February 1988, the Netherlands Government announced that they
considered the situation in Surinam to have calmed down and that the
country was on the way to the re-establishment of democracy.
Therefore, from that moment on the unprocessed residence permit
requests of the approximately 5.000 so-called "tolerated Surinamese"
(gedoog-Surinamers) would be taken up and decided upon.
In consequence, beginning in June 1988, the applicants all
individually received decisions that they did not comply with Dutch
immigration regulations and that, therefore, they would have to leave
the Netherlands. The applicants all duly applied for a review of this
decision to the Minister of Justice. They all individually received
written replies stating that their review requests would not be
granted suspensive effect.
Thereupon, the applicants all individually instituted summary
proceedings demanding suspensive effect for the duration of their
appeal proceedings in the Netherlands.
On 10 June 1988, in the first such case, the President of the
Regional Court (Arrondissementsrechtbank) of the Hague adjourned the
case for further information by the parties. In his further
submissions, the lawyer of the applicant concerned, inter alia, raised
the point that the expulsion of the "tolerated Surinamese" constituted
a collective expulsion, in violation of Article 4 of Protocol No. 4.
On 7 September 1988 the President decided that this applicant's
appeals to remain in the Netherlands had no prospect of success. He,
therefore, rejected the request to be allowed to remain in the country
pending this applicant's appeals. Subsequent to that decision the
applicant involved was sent back to Surinam.
THE COMPLAINT
The applicants complain that they are being sent back to
Surinam by the Netherlands, in the execution of a policy of expelling
all Surinamese who were tolerated in the Netherlands between late 1986
and February 1988. They allege that this expulsion is collective in
character and that the standard-form decisions of expulsion with the
applicants' name on them only give the appearance of individualised
decisions. They invoke Article 4 of Protocol No. 4.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 August 1988 and
registered on 12 September 1988.
A request for an indication in accordance with Rule 36 of the
Commission's Rules of Procedure to the respondent Government that in
the interest of the Parties and the proper conduct of the proceedings
it was desirable that the applicants not be deported to Surinam until
the Commission had had an opportunity to examine the application was
provisionally refused by the President on 12 September 1988.
On 12 September 1988 the Rapporteur requested the respondent
Government, in accordance with Rule 40 para. 2 (a) of the Commission's
Rules of Procedure, to provide further information on the Government's
policy in respect of tolerated Surinamese before 28 September 1988.
The Government's observations were received on 28 September
1988. These were communicated to the applicants who were invited to
submit comments in reply before 31 October 1988.
The applicants' observations in reply were received on 28
October 1988.
INFORMATION BY THE PARTIES
The Government
The policy in the Netherlands concerning the granting of
refugee status always involves an individual consideration of an
applicant's case to be recognised as a political refugee or otherwise
someone who can be granted a residence permit on the basis of the
Aliens Act (Vreemdelingenwet).
The concept of collective expulsion does not exist under Dutch
Aliens Legislation.
The toleration policy towards Surinamese asylum-seekers was
begun on 5 December 1986 to cease sending people back to the civil war
situation in Surinam. Subsequently, all requests by Surinamese for
residence permits were accorded a low priority, until in February 1988
it was considered that the situation in Surinam had become safe.
Thereafter, the "regular" policy was reapplied, and the examination of
requests for residence permits of Surinamese was again taken up.
Because, in the meantime, the group of tolerated Surinamese
had grown to comprise several thousand people, inevitably many of them
will be returning to Surinam at the same time, but that does not mean
that their return is collective. Furthermore, in accordance with
regular policy, each individual is first given ample opportunity to
depart voluntarily. If he is unable to pay, he can receive financial
assistance. Forced deportation is only used sparingly, and is
individually reviewed before being carried out. Before a deportation,
the Netherlands Embassy in Surinam is requested to inform the
Government if there is any known risk to the person if deported to
Surinam.
In the case of the applicants, they do not have a right to
reside in the Netherlands under the Aliens Act. They have been
informed of this individually. They have asked individually for a
review. They have individually been informed that they may not remain
in the Netherlands pending this review. They have individually
instituted summary proceedings against their expulsion.
As is evident from the Commission's case law, deportation
cannot be described as collective "where such a measure is taken after
and on the basis of a reasonable and objective examination of the
particular cases of each individual alien of the group", which is
always the case under Dutch policy on aliens (No. 7011/75, Dec.
3.10.75, Yearbook 19 p. 416, No. 7704/76, Dec. 11.3.77, unpublished,
No. 7757/77, Dec. 3.3.78, unpublished).
Where the summary proceedings have not yet led to a decision,
the respondent Government submit, there has not yet been an exhaustion
of domestic remedies.
The applicants
The "tolerated Surinamese" are all former nationals of the
Netherlands who lost that nationality without being consulted. They
all speak Dutch, have family in the Netherlands and have been educated
in the same educational tradition as that of the Netherlands. The
toleration policy is a unique policy designed specifically for these
people.
The applicants all have received standardised decisions that
they must leave the Netherlands. They have all, in a new standard
policy, not been allowed to remain pending their appeals. In nothing
does it appear that their individual cases have been individually
reviewed. No investigation has taken place into the current
circumstances of the applicants, who have now developed family ties,
have jobs or are going to school, and otherwise have assimilated
themselves into Dutch society. Nor has there been a proper
examination into the dangers which individuals may face if returned to
Surinam. The applicants are sent back purely on the basis of their
situation at the time of their arrival in the Netherlands.
Furthermore, after the decision in summary proceedings of 7
September 1988 it is clear that this no longer constitutes an
effective remedy to prevent expulsion. Now that the applicants are
not allowed to await their final appeal before the Council of State,
they will often either have no practical possibility to lodge this
appeal where the applicant is already gone, or this appeal will no
longer be effective because the applicant no longer has an
interest.
THE LAW
The applicants have complained that after having been
tolerated in the Netherlands under an official policy of toleration of
Surinamese refugees, they are now being expelled. They have invoked
Article 4 of Protocol No. 4 (P4-4), which provides as follows:
"Collective expulsion of aliens is prohibited".
The respondent Government have stated that the applicants are
individually expelled. They have an individual right to review of the
denial of a residence permit by the Minister of Justice and later, to
a procedure before the Council of State, and they have all availed
themselves of the right to a review. Furthermore, the Government
contend that the applicants have all introduced individual summary
proceedings against their expulsion, and that, as long as there has
not yet been a decision in these proceedings, the applicants have not
yet exhausted domestic remedies.
The applicants allege that their expulsion decisions only have
the appearance of individual decisions. They contend that the
individual review before the Council of State is illusory because they
will have been expelled before they can institute it, or, at any rate,
before their case comes up. Furthermore, they submit that the
decision of 7 September 1988 in summary proceedings can be regarded as
a test case and that, therefore, the other applicants do not have to
exhaust this remedy as it has proven to be ineffective.
The Commission considers that it is not necessary to decide
whether or not the applicants have all exhausted the domestic remedies
available to them, because it finds the application manifestly
ill-founded for the reasons set out below.
The Commission recalls its decision in Application No. 7011/75
(Dec. 3.10.75, Yearbook 19 p. 416, 454) wherein it defined collective
expulsion as follows:
"...any measure of the competent authorities compelling
aliens as a group to leave the country, except where such a
measure is taken after and on the basis of a reasonable and
objective examination of the particular cases of each
individual alien of the group".
The Commission notes that in the present case the examination
of the applicants' requests for asylum was suspended by the
Netherlands authorities between 5 December 1986 and February 1988.
Thereafter, examination of these requests was taken up again. The
applicants have all received decisions on their requests and have
requested a review of these decisions by the Minister of Justice. In
their review requests they have had the opportunity to present their
objections to their expulsion. All the applicants have individually
received a reply from the Minister of Justice denying them suspensive
effect for their review requests. They have all instituted summary
proceedings against their expulsion. Before the President of the
Regional Court they have the opportunity to explain their objections
to their expulsion in these proceedings. In the so-called test case
of 7 September 1988, the President of the Regional Court examined that
applicant's individual complaints. The Commission further notes that
any unfavourable decision by the Minister of Justice regarding the
review requests may be appealed to the Council of State by each
applicant individually.
In these circumstances the Commission considers that the
applicants' expulsions do not reveal the appearance of a collective
expulsion within the meaning of Article 4 of Protocol No. 4 (P4-4).
It follows that the application must be rejected as being
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
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
APPENDIX
&SParticulars of the applicants&-
Adjina ALIBAKS, born on 28.1.1942
Harripersad BANDHOE, born on 27.8.1962
Baldew Sarmah BIHARI, born on 27.12.1955
Bisoende CHAITOE, born on 7.11.1933
Oemar FATEHMOHAMMED, born on 28.8.1934
Radjinderkoemar GANGOE, born on 5.5.1965
Mohamedsherief CHAFOER, born on 30.5.1961
Yvonne Goyasreedevi GOELELA, born on 8.10.1963
Hendrik GOWRIE, born on 23.3.1950
Narinderdew JAGTOE, born on 5.8.1959
Rajendrekoemar JHINKOE, born on 9.4.1961
Iwan Percy LETTERBOOM, born on 15.9.1940
Hein Adolf LODIK, born on 16.10.1956
Krishnepersad NIMAR, born on 8.2.1951
Soerin Indrechandre JAN ORI, born on 20.5.1968
Kasipersad RAMLAL, born on 1.4.1961
Soerishing RANSING, born on 12.6.1966
Lilawatie RATTANSINGH, born on 30.10.1961
Dielepkoemar SEWNANDAN, born on 14.3.1962
Jaswantsing SOEKRADJ, born on 27.9.1958
Hementkoemar SOMAI, born on 28.9.1960
Lloyd Etienne WIEGEL, born on 1.2.1962
Ivonne Chandrawattie SAHEBLAL, born on 7.9.1957