AS TO THE ADMISSIBILITY OF
Application No. 32037/96
by Shakil AMED
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the 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 1 April 1996 by
Shakil AMED against the Netherlands and registered on 26 June 1996
under file No. 32037/96;
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 national of Pakistan, born in 1966, and has
been expelled from the Netherlands to Pakistan on 6 July 1994. His
present whereabouts are unknown. He is represented by Mr F.W. King, a
legal adviser working in Leiden, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
When boarding a ferry in the Netherlands bound for the United
Kingdom on 10 June 1994, the applicant was found to carry a forged
French passport. He was arrested and detained on remand. He was
subsequently detained under the Aliens Act (Vreemdelingenwet) with a
view to his expulsion from the Netherlands. Upon his arrest the
applicant stated that he had obtained the passport from his uncle, who
was living in London and who would be awaiting him at Harwich. He
further stated that this uncle had promised him work.
When questioned further by the police on 13 June 1994, the
applicant stated that he was a Pakistani national, born in 1966, and
that he had come to the Netherlands with a forged passport in order to
travel to family in the United Kingdom. He further stated that his
authentic papers were in Pakistan and that he wished to return to his
mother in Pakistan as soon as possible.
On 20 June 1994, the applicant filed a request for asylum or,
alternatively, a residence permit on humanitarian grounds. When heard
on this request on 22 June 1994, the applicant stated, inter alia, that
he did hold a valid Pakistani passport and identity card, but that
these documents were still in Pakistan with his mother. He indicated
his mother's address and stated that he had lived with her until his
departure from Pakistan. He also declared tht he had two brothers and
five sisters in Pakistan. He had left Pakistan for fear of his life as
the leader of the ruling Pakistan People Party (PPP) wanted to kill him
for being a member of the Muhajir Qoumi Movement (MQM), a political
organisation striving for the independence of the city of Karachi
within Pakistan.
He stated that the MQM leader had been granted asylum in the
United Kingdom and that the authorities of Pakistan were actively
persecuting the MQM and had summarily executed a number of its members
recently, including a friend of the applicant who was killed in
April 1994. He stated that he had stopped his activities for the MQM
in 1992 in view of the rising power of the PPP and that he had received
threats.
He further stated that he had bought the forged French passport
in Karachi. When confronted with the discrepancies between his asylum
statement and earlier statement to the police, the applicant replied
he was absent-minded and had lied. He had not applied for asylum
earlier because his legal adviser had not informed him of this
possibility.
The Deputy Minister of Justice (Staatssecretaris van Justitie)
rejected the applicant's request for asylum and a residence permit on
24 June 1994 as ill-founded. It was further decided that an appeal
against this decision would not have any suspensive effect as to the
applicant's expulsion. This decision was served on the applicant on
27 June 1994. The applicant filed an appeal with the Regional Court
(Arrondissementsrechtbank) of The Hague on 5 July 1994.
The applicant was expelled on 6 July 1994 to Pakistan. Since that
date neither the applicant's representative nor the applicant's family
residing in the Netherlands have heard from him.
On 2 February 1996, the Regional Court rejected the applicant's
appeal as ill-founded. Insofar as the applicant had alleged that his
expulsion was contrary to Article 3 of the Convention, the Regional
Court doubted the veracity of the applicant's account. Even assuming
it was correct, the Regional Court noted that the applicant had ceased
his activities for the MQM already in 1992 and had remained in Pakistan
until 9 June 1994 without having encountered any problems from the side
of the authorities. It further found the applicant's reasons for his
fear to have remained unsubstantiated. The information submitted was
considered too general to allow any conclusions to be drawn as to the
applicant's personal situation. In these circumstances, the Regional
Court did not find it established that the applicant would be subjected
to treatment contrary to Article 3 of the Convention in Pakistan.
COMPLAINTS
The applicant complains that his expulsion to Pakistan was
contrary to Article 3 of the Convention. It is further submitted that
since the applicant's expulsion neither the applicant's representative
nor the applicant's family residing in the Netherlands have heard from
him and that it must, therefore, be assumed that the applicant has been
killed upon his return to Pakistan.
THE LAW
The applicant complains that his expulsion to Pakistan was
contrary to Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission observes that Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations including those under Article 3 (Art. 3) of the
Convention, to control the entry, residence and expulsion of aliens.
Furthermore it must be noted that the right to political asylum
is not protected in either the Convention or its Protocols. However,
an expulsion decision may give rise to an issue under Article 3
(Art. 3), and hence engage the responsibility of a State under the
Convention, where substantial grounds have been shown for believing
that the person concerned faced a real risk of being subjected to
torture or to inhuman or degrading treatment or punishment in the
country to which he or she was to be expelled. A mere possibility of
ill-treatment is not in itself sufficient to give rise to a breach of
this provision (cf. Eur. Court HR, Vilvarajah and Others v. United
Kingdom judgment, ibid., p. 34, para. 103, and p. 37, para. 111).
The Commission also recalls that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 (Art. 3) (cf. No. 27776/95, Dec. 26.10.1995, D.R. 83, p.
101). An assessment of whether such a treatment is in breach of this
provision, must be a rigorous one in view of the absolute character of
this Article (cf. Eur. Court HR, Chahal v. United Kingdom judgment,
ibid., para. 96).
The Commission has examined the applicant's submissions and the
documents in support of his application. The Commission notes that the
applicant's activities for the MQM gave him no cause to flee Pakistan
immediately, but only after two years.
The Commission further notes that the applicant's allegations as
regards his membership and activities for the MQM and the alleged
threats have remained unsubstantiated in the proceedings in the
Netherlands. The Commission cannot, therefore, find the national
authorities' findings as regards the risk that the applicant would be
exposed to treatment contrary to Article 3 (Art. 3) of the Convention
unreasonable.
Insofar as it has been suggested that the applicant has probably
been killed upon his return to Pakistan, the Commission notes from the
applicant's submissions that his mother, five sisters and two brothers
live in Pakistan and that he has family members residing in the
Netherlands. The Commission does not find it established that it was
impossible for the applicant's representative to establish contacts
with the applicant's family in order to obtain information about the
applicant's fate.
In these circumstances, the Commission is of the opinion that it
has not been established that the applicant was exposed to a real risk
of being subjected to treatment contrary to Article 3 (Art. 3) of the
Convention when he was returned to Pakistan.
It follows 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy