AS TO THE ADMISSIBILITY OF
Application No. 25983/94
by A.R. D.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
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 9 November 1994
by A.R. D. against the Netherlands and registered on 19 December 1994
under file No. 25983/94;
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 Turkish citizen of Kurdish origin, born in
1971, and at present residing in the Netherlands. 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.
A. Particular circumstances of the case
The applicant submits that he left Turkey because he was being
prosecuted for having been involved with the PKK (Kurdish Workers'
Party - an armed separatist movement). He arrived in the Netherlands
in the night of 27 September 1994 and did not report himself to the
police until 3 October 1994 since he was not aware of asylum
proceedings in the Netherlands. He was subsequently sent to a temporary
refuge for asylum seekers and, on 16 October 1994, he was taken to a
registration centre (aanmeldcentrum) for asylum seekers which had
opened on that day.
In the registration centre the applicant filed requests for
asylum and a residence permit for humanitarian reasons. That same day,
i.e. 16 October 1994, he had a preliminary and an extended interview
(eerste en nader gehoor) with an official of the Ministry of Justice
(contactambtenaar van het Ministerie van Justitie). He submits that
this official was not interested in the indictment of the Erzincan
State Security Court which he had brought with him as evidence of his
prosecution in Turkey.
On 17 October 1994, the Deputy Minister of Justice
(Staatssecretaris van Justitie) declared the applicant's request for
asylum inadmissible since, despite the fact that he was not in
possession of a passport, he had failed to report himself to the
authorities without delay ("onverwijld"). The Deputy Minister found
furthermore that in any case there could not reasonably be any doubt
that the applicant was not a refugee. The applicant's request for a
residence permit for humanitarian reasons was rejected in the same
decision.
When the applicant was handed this decision, also on
17 October 1994, he was informed that he had one hour to request an
interim measure (voorlopige voorziening) from the President of The
Hague Regional Court (Arrondissementsrechtbank) in order to suspend his
expulsion pending an objection against the decision. The applicant
submits that he was referred to a lawyer who was present in the
registration centre but who told him he was unable to file a request
for an interim measure. According to the applicant, the organisations
offering legal assistance in the registration centre were not yet fully
operational on the day the centre opened.
Later that same day the applicant and a compatriot were taken by
military police to the border zone with Belgium where they were told
to get out of the car. The applicant returned to The Hague where he
found a lawyer on 27 October 1994. This lawyer immediately requested
an interim measure from the President of The Hague Regional Court and
filed an objection against the Deputy Minister's decision of
17 October 1994.
On 10 November 1994, the Deputy Minister decided that the
applicant would be allowed to remain in the Netherlands pending the
objection proceedings and the request for an interim measure was
subsequently withdrawn.
As the Deputy Minister had not decided on the objection within
the statutory period of time, the applicant filed an appeal on
24 May 1995 with The Hague Regional Court against the Deputy Minister's
fictitious rejection (fictieve weigering) of the objection. This appeal
is currently still pending. The Deputy Minister informed the applicant
on 13 December 1995 that following the appeal to the Regional Court his
expulsion had been suspended.
B. Relevant domestic law and practice
With the opening of two registration centres for asylum seekers
in the third quarter of 1994, a new asylum procedure came into force
in the Netherlands. Asylum seekers whose requests for asylum are
considered manifestly ill-founded or inadmissible will be handed a
decision rejecting their requests within 24 hours. They may, within
four weeks, file an objection or appeal against this decision but this
will not suspend the expulsion unless they succeed in obtaining an
interim measure from The Hague Regional Court. This category of asylum
seekers is given one hour to apply for an interim measure.
The grounds for declaring an asylum request manifestly ill-
founded or inadmissible are contained in Sections 15 b and c of the
Immigration Act (Vreemdelingenwet). Section 15 b para. 1 (f) provides
that a request for asylum is inadmissible if a foreigner is not in
possession of documents required for entrance into the Netherlands,
unless he reports himself without delay to a civil servant charged with
border control or the surveillance of foreigners and he informs this
civil servant that he has a well-founded fear of persecution.
COMPLAINTS
The applicant complains that his expulsion to Turkey would expose
him to a real risk of receiving treatment contrary to Articles 2 and
3 of the Convention. He also invokes Article 3 of the Convention in
relation to his expulsion to Belgium, a country where his entrance was
not guaranteed.
The applicant further complains of the way in which his request
for asylum was dealt with. He alleges in particular that, unlike asylum
seekers who filed their requests prior to 16 October 1994, he was not
given any time to prepare for the interviews with the Ministry of
Justice and there was not sufficient legal assistance available after
his requests had been rejected. Furthermore, the official conducting
the interview was not interested in a document which supported his
asylum claims. The applicant invokes Article 6 of the Convention taken
alone and in conjunction with Articles 13 and 14.
THE LAW
1. The applicant complains that his expulsion to Turkey would be,
and his expulsion to Belgium was, contrary to Article 3 (Art. 3) of the
Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
In respect of his expulsion to Turkey he also invokes Article 2
(Art. 2) of the Convention, which, insofar as relevant, provides:
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for
which this penalty is provided by law. ..."
(a) As regards the applicant's expulsion to Turkey, the Commission
notes that the Deputy Minister of Justice decided to allow the
applicant to remain in the Netherlands pending the objection
proceedings. Furthermore, following the appeal lodged with The Hague
Regional Court against the Deputy Minister's fictitious rejection of
the applicant's objection, the applicant has been informed that his
expulsion has been suspended.
The Commission concludes that in the particular circumstances of
the present application the applicant is not able to claim to be a
victim, within the meaning of Article 25 para. 1 (Art. 25-1) of the
Convention, of the violations of the Convention which he has alleged.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
(b) In respect of the applicant's expulsion to Belgium, the
Commission recalls that it has previously held that the repeated
expulsion of a person whose identity or nationality cannot be
established to a country where it is not certain that he will be
admitted may raise problems under Article 3 (Art. 3) of the Convention.
The same is the case where a foreigner is repeatedly expelled, over a
long period of time, and no State takes steps to regularise his
position (cf. No. 10798/84, Dec. 5.3.86, D.R. 46, p. 112).
The Commission notes that in the present case the applicant was
left in the border zone between the Netherlands and Belgium and that
there was no guarantee that the applicant would be allowed to enter the
latter country. However, having assessed all the circumstances of the
present case, the Commission cannot find that the action taken by the
Dutch authorities amounted to ill-treatment which attained such a level
of severity as to fall within the scope of Article 3 (Art. 3) of the
Convention.
It follows, therefore, that this aspect of 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 the proceedings whereby his
requests for asylum and a residence permit for humanitarian reasons
were determined did not meet the requirements of Article 6 (Art. 6) of
the Convention.
This provision, insofar as relevant, stipulates:
"1. In the determination of his civil rights and obligations
... everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal
established by law. ..."
The Commission recalls that it has constantly held that the
procedures followed by public authorities to determine whether a
foreigner should be allowed to stay in a country or should be expelled
do not involve the determination of civil rights within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 13162/87, Dec.
9.11.87, D.R. 54, p. 211). Accordingly the Commission must reject this
part of the application as being incompatible ratione materiae with the
provisions of the Convention, pursuant to Article 27 para. 2
(Art. 27-2).
3. The applicant further invokes Article 13 (Art. 13) of the
Convention and contends that he had no effective remedy before a
domestic authority for the violation which he alleges of Article 6
(Art. 6) of the Convention. Article 13 (Art. 13) 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 has interpreted this provision as requiring the
existence of a remedy before a national authority for anyone who may
make an arguable claim that their rights under the Convention have been
violated. In view of the above conclusion that the complaints raised
under Article 6 (Art. 6) of the Convention are incompatible with the
provisions of the Convention, it follows that the applicant has no such
arguable claim (cf. No. 10427/83, Dec. 12.5.86, D.R. 47, p. 85).
Consequently, this part of his complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally complains of a violation of Article 14 in
conjunction with Article 6 (Art. 14+6) of the Convention in that he was
treated differently from other asylum seekers. Article 14 (Art. 14),
insofar as relevant, provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission reiterates that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence since it
has effect solely in relation to "the enjoyment of the rights and
freedoms" safeguarded by those provisions. Although the application of
Article 14 does not presuppose a breach of those provisions - and to
this extent it is autonomous -, there can be no room for its
application unless the facts at issue fall within the ambit of one or
more of the latter (cf. Eur. Court H.R., Karlheinz Schmidt judgment of
18 July 1994, Series A no. 291 B, p. 32, para. 22).
Given that the Commission has found that the applicant's
complaint under Article 6 (Art. 6) does not fall within the ambit of
this provision, it follows that similarly the complaint under Article
14 (Art. 14) is incompatible ratione materiae with the provisions of
the Convention within the meaning of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy