AS TO THE ADMISSIBILITY OF
Application No. 16505/90
by I.H.
against the Netherlands
The European Commission of Human Rights sitting in private
on 10 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 25 April 1990
by I.H. against the Netherlands and registered on 25 April 1990 under
file No. 16505/90;
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 applicant is a Lebanese citizen born in 1958. He is at
present residing in Alkmaar, the Netherlands. Before the Commission
he is represented by Mr. Th. Spijkerboer, a lawyer practising in
Zaandam.
The applicant left Beirut, Lebanon on 10 February 1990 by
taxi. He arrived in Damascus, Syria, where he boarded an airplane
bound for Bucharest, Romania. Via Zurich, Switzerland,he arrived in
Amsterdam, on 11 February 1990. In Amsterdam he immediately requested
asylum.
On 19 February 1990, he was interviewed by an official from
the Ministry of Justice. As reasons for his asylum request he stated,
inter alia, that due to the war situation in Lebanon he frequently had
to close his shop. His shop was in a Hezbollah controlled quarter of
Beirut whereas he lived in an Amal controlled quarter. He denied ever
having been a member of a political party or militia. He or his
family had never suffered any particular difficulties due to the
conflict. He specifically stated that he had fled for economic
reasons.
On 20 February 1990, the Deputy Minister of Justice rejected
the applicant's request for asylum and also refused to grant him a
residence permit.
The applicant's request of 26 February 1990 for a review of
this decision was apparently denied suspensive effect for his
deportation. He, therefore, with the assistance of counsel,
instituted summary proceedings (kort geding) with the President of the
Regional Court (Arrondissementsrechtbank) of Haarlem demanding the
right to remain in the Netherlands pending his appeals on his asylum
request.
In his request for review and in his summary proceedings he
stated, inter alia, that in 1982 he had begun to work for the
Amal-militia, with whom he sympathised. Initially he helped tending
to wounded militia-men. Later, he worked in an office where identity
and travel documents were fabricated. In 1985, he secretly began
smuggling blank documents out for use by El-Fatah, the Palestinian
organisation. In 1989, Amal asked him to participate in the fighting,
which he refused. In January 1990 he was informed by an Amal leader
that it had become known that he was also working for El Fatah.
Fearing reprisals, he fled. He produced a letter in Arabic from the
said Amal-leader dated 16 January 1990, which had been forwarded to
him after his arrival in the Netherlands and supported his
allegation. He claimed that he had not told this account of events
initially because he had been told with great urgency, before leaving
Lebanon, that he should not mention his political activities if he
wanted to obtain asylum on humanitarian grounds in the Netherlands.
On 6 April 1990, the President of the Regional Court rejected
the applicant's injunction request. The President stated, inter alia,
that he would completely disregard the applicant's later statements.
He found it entirely lacking in credibility that someone in such great
danger, as the applicant now claimed to be, would not mention this when
provided with an opportunity to explain his motives for seeking asylum.
As to Article 3 of the Convention, the President stated that
the individual circumstances of the applicant's case could not
lead to the conclusion that he faced a "real risk" of treatment
contrary to this Article if returned to Lebanon.
COMPLAINTS
The applicant complains that if deported to Lebanon he faces
a real risk of suffering treatment contrary to Article 3 of the
Convention by:
a. becoming the victim of random violence;
b. being forced to participate in the fighting;
c. being subjected to reprisals for trying to avoid induction
into a militia;
d. being subjected to ill-treatment at the hands of rival
militias.
Furthermore, the applicant submits that what is of primary
importance in assessing this risk is what happened to him in Lebanon,
and not what he told the officials of the Ministry of Justice when
interviewed on his asylum request. In this respect, the applicant
points out that at these interviews he does not have recourse to legal
assistance, his statements are first interpreted into Dutch and then
into a written form, and there is no way of subsequently checking what
he did or did not say as there is no audio recording of the
interview.
THE LAW
The applicant complains that if deported to Lebanon he faces
a real risk of suffering inhuman or degrading treatment at the hands
of militias or in the course of the general civil war situation,
either as an innocent bystander or through being coerced into
participating in the fighting. He invokes Article 3 (Art. 3) of the
Convention. This provision reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that the extradition of a person may
give rise to an issue under Article 3 (Art. 3) of the Convention, and
hence engage the responsibility of the extraditing State under the
Convention, where substantial grounds have been shown for believing
that the person concerned, if extradited, faces a real risk of being
subjected to torture or to inhuman or degrading treatment or
punishment in the country of destination (cf. Eur. Court H.R., Soering
judgment of 7 July 1989, Series A no. 161, para. 91 p. 35).
This also applies, mutatis mutandis, to expulsion.
In the present case, the Commission notes that the applicant's
original statements to officials of the Ministry of Justice referred
to the general situation in Lebanon. Subsequent to the refusal of
asylum, he revised his story to include specific details of
personal difficulties caused by militias or the war situation.
In his appeal in summary proceedings the applicant also
relied on Article 3 (Art. 3) of the Convention. The Commission notes
that the President of the Regional Court examined this argument, also
in the light of the aforementioned Soering judgment, and considered
that it could not be concluded that there was a "real risk" of the
applicant being exposed to treatment referred to in Article 3 (Art. 3)
of the Convention, if returned to Lebanon.
Furthermore, the Commission considers that, in view of the
contradictory nature of the applicant's statements as made at his
original interview in the Netherlands and as subsequently made in his
appeals, serious doubt is cast on the credibility of his later
accounts of his activities in Lebanon. In this respect the Commission
notes that, in his first statement, the applicant specifically stated
that he had left Lebanon for economic reasons and he made no
indication whatsoever of any danger to himself.
In these circumstances the Commission considers that the
grounds which the applicant presents in support of his complaint are
not sufficient to substantiate he conclusion that he faces a real
risk of being subjected to treatment as referred to in Article 3
(Art. 3) of the Convention, if returned to Lebanon.
Therefore, the Commission finds 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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