Application No. 23877/94
by Abakoula ARGALALESS
against the Netherlands
The European Commission of Human Rights sitting in private on
17 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
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 3 February 1994
by Abakoula ARGALALESS against the Netherlands and registered on
14 April 1994 under file No. 23877/94;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on 29
July 1994 and the letter submitted by the applicant's
representative on 4 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Niger, born in 1968 and at present
residing at Heerlen, the Netherlands. Before the Commission he is
represented by Mr. C.H.M. Geraedts, a lawyer practising in Brunssum,
the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 19 August 1991 the applicant requested asylum and a residence
permit in the Netherlands. In connection with this request he was heard
on 6 December 1991 by officials from the Ministry of Justice. The
applicant stated that, if he returned to Niger, he would probably be
persecuted, as he is a member of the Tuareg tribe in Niger and has
spent some time in Libya. He did not receive any military training in
Libya as a Tuareg resistance fighter opposing the Government of Niger,
but just worked on a farm. He was, however, unable to prove this.
On 27 January 1992 the Deputy Minister of Justice rejected the
applicant's request. As regards his request for asylum, it was held
that the fact that he belongs to the Tuareg tribe is in itself an
insufficient basis for considering that he has a well-founded fear of
persecution. As regards his request for a residence permit, the Deputy
Minister held that there were no compelling reasons of a humanitarian
character on the basis of which a residence permit could be granted.
On 4 March 1992 the applicant requested the Deputy Minister to
revise (herziening) the decision of 27 January 1992 and to grant
suspensive effect to this revision request. He received no reply.
Pursuant to Section 34 para. 2 of the Aliens Act
(Vreemdelingenwet) a request for review is assumed to be rejected when
the Deputy Minister does not decide on the request within three months.
On 9 June 1992 the applicant filed an appeal against the Deputy
Minister's fictitious negative decision with the Litigation Division
of the Council of State (Afdeling Rechtspraak van de Raad van State).
This appeal is still pending.
Since the proceedings before the Council of State have no
suspensive effect the applicant started summary proceedings (kort
geding) before the President of the Regional Court (Arrondissements-
rechtbank) of The Hague, requesting an injunction against his expulsion
pending the proceedings before the Council of State.
On 27 July 1992 the President of the Regional Court rejected this
request for an injunction. He considered that the applicant had failed
to substantiate the alleged risk of persecution on the basis of being
a Tuareg who had spent some time in Libya. The situation could be
different for Tuaregs who have in fact received military training in
Libya, but this was not the situation in the applicant's case since he
had only worked on an agricultural project. The President further
considered that no compelling reasons of a humanitarian character had
appeared on the basis of which the applicant should be allowed to stay
in the Netherlands.
On 4 January 1993 the applicant requested the United Nations High
Commissioner of Refugees (UNHCR) to inform him whether or not, in view
of his personal situation in combination with the general situation of
the Tuaregs in Niger, he could be regarded as a refugee and whether or
not his return to Niger could entail a risk to his life or safety.
By letter of 23 March 1993 the UNHCR replied that the findings
made in the course of an inquiry "show that due to the de facto
imposition of martial law in Northern Niger, [the applicant] has a
well-founded fear of persecution in Niger. The fact that [the
applicant] has been in Libya constitutes in our view an additional and
personal factor to establish his well-founded fear of persecution."
On the basis of this letter the applicant requested the Deputy
Minister of Justice to reconsider his application for asylum and a
residence permit. The Deputy Minister requested the Ministry of Foreign
Affairs to submit information as regards the situation in Niger.
Subsequently the Ministry of Foreign Affairs made an inquiry into the
situation in Niger.
In a report of 30 November 1993 the Ministry of Foreign Affairs
informed the Deputy Minister of Justice, inter alia, that Tuaregs in
Niger who have fled to neighbouring countries are considered by the
UNHCR as prima facie refugees, i.e. as persons who suddenly and in
large numbers find themselves in another country and might require
immediate material help. The Ministry further states that, since
11 March 1993, a truce is in force in Northern Niger between the
Government army and the rebelling Tuaregs united in the "Front de
Libération d'Aïr et d'Azawak" (FLAA), but that the last prolongation
of this truce on 10 September 1993 had only been signed by one of the
three groups united in the FLAA. As regards individual requests for
asylum by Tuaregs from Niger, the report stated that the UNHCR examines
them on an individual basis, whereas, apart from being a Tuareg,
additional information indicating persecution is also taken into
account in this examination.
A second set of summary proceedings instituted by the applicant
has been adjourned several times at the request of the Deputy Minister
of Justice pending the inquiry by the Ministry of Foreign Affairs.
By letter of 29 August 1994 the lawyer representing the
Government in the summary proceedings informed the applicant's lawyer
that, in view of the numerous summary proceedings still pending and the
general undesirability of summary proceedings pending too long, the
applicant had been granted permission to remain in the Netherlands
pending the appeal proceedings before the Council of State.
COMPLAINT
The applicant complains that his expulsion to Niger would be
contrary to Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 February 1994 and registered
on 14 April 1994.
On 20 May 1994 the Commission decided to apply Rule 36 of the
Commission's Rules of Procedure until 8 July 1994, to communicate the
application to the respondent Government and to invite them to submit
their observations on the admissibility and merits of the application.
On 6 July 1994 and 8 September 1994 the Commission decided to
prolong the application of Rule 36, on the latter occasion until
21 October 1994.
The Government's observations were submitted on 29 July 1994 and
transmitted to the applicant's representative for comments.
By letter of 4 October 1994 the applicant's representative
informed the Commission that the applicant did not wish to pursue his
application, as he had been granted permission to remain in the
Netherlands pending the appeal proceedings before the Council of State.
REASONS FOR THE DECISION
Having regard to Article 30 para. 1 (a) of the Convention, the
Commission notes that, by letter of 4 October 1994, the applicant's
lawyer informed the Commission that the applicant does not intend to
pursue his application, since he has been granted permission to stay
in the Netherlands pending the outcome of the appeal proceedings before
the Council of State. It finds no special circumstances regarding
respect for human rights as defined in the Convention which require
examination of the application to be continued, in accordance with
Article 30 para. 1 in fine of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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