AS TO THE ADMISSIBILITY OF
Application No. 17878/91
by Azezo MBUNZU
against the Netherlands
The European Commission of Human Rights sitting in private on 11
May 1992, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 14 February 1991
by Azezo MBUNZU against the Netherlands and registered on 8 March 1991
under file No. 17878/91;
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 an Angolan national, at present residing in
Amsterdam. It is unclear whether the applicant was born in 1958 or
1966.
Before the Commission the applicant is represented by M.J.A.
Leijen, a lawyer practising in Alkmaar, the Netherlands.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In January 1990 the applicant was called up for military service
in the Angolan governmental MPLA forces. At that time the MPLA forces
were fighting against the UNITA resistance movement. The applicant's
only two brothers had already lost their lives serving in the MPLA
army. The applicant's father did not want his only remaining son to
perform military service and decided that the applicant should leave
Angola. The applicant initially went into hiding and subsequently,
assisted by friends, left Angola on 2 March 1990 holding a valid
passport and exit visa.
He arrived in the Netherlands on 3 March 1990, where he
immediately requested asylum and a residence permit.
On the same day, the applicant was interviewed by an official
from the Ministry of Justice. He declared he did not want to join the
army as his two brothers had already died in active service and as new
conscripts were immediately sent to the war front without any training.
On 11 April 1990 the Deputy Minister of Justice rejected the
applicant's requests for asylum and a residence permit.
Following the applicant's request of 21 May 1990 for a review of
this decision, the Deputy Minister of Justice on 18 June 1990 refused
to give suspensive effect to this request as regards the applicant's
expulsion from the Netherlands.
As the Deputy Minister of Justice failed to decide the request
for review within three months, the applicant, on 13 September 1990,
filed an appeal with the Judicial Division of the Council of State
(Afdeling Rechtspraak van de Raad van State) against the fictitious
negative decision by the Deputy Minister, which appeal is still
pending.
On 10 August 1990 the applicant started summary proceedings (kort
geding) before the President of the Regional Court
(Arrondissementsrechtbank) of The Hague, claiming the right to remain
in the Netherlands pending the final outcome of his requests for asylum
and a residence permit.
On 28 September 1990 the Acting President of the Regional Court
rejected the applicant's request, including the applicant's complaint
under Article 3 of the Convention.
The Acting President held, inter alia, that a refusal to perform
military service can only under special circumstances lead to a status
of refugee, which circumstances, in his opinion, had not been
established in the applicant's case and that under Dutch law the right
to refuse military service is not considered as a fundamental human
right.
The applicant's subsequent appeal against this decision with the
Court of Appeal (Gerechtshof) of The Hague is still pending.
By letter of 4 June 1990, a friend of the applicant informed the
applicant that his father had been arrested on 26 May 1990 as a result
of the applicant's absconding and was detained at an unknown place.
By an anonymous telegram of 28 February 1990 and by letters of
25 March and 11 August 1991 from his uncle the applicant was informed
that his father had died in prison in November 1990.
On 31 May 1991 a peace agreement was signed between the Angolan
Government and the UNITA resistance movement. Since 1 June 1991 a
ceasefire is in force and on 12 July 1991 the Angolan Government issued
an Amnesty Act, which provides amnesty for, inter alia, persons who
have refused to perform military service and deserted before 31 May
1991.
COMPLAINTS
1. The applicant complains that the Netherlands authorities by
expelling him to Angola expose him to a serious risk of losing his life
in an inhuman and senseless civil war. He submits that upon his return
he will be sent immediately and untrained to the war front. He relies
in this respect on Articles 2 and 3 of the Convention.
2. The applicant complains under Article 6 para. 1 of the Convention
that he had no access to an independent and impartial tribunal in
respect of the decisions on his requests for asylum and a residence
permit, as civil courts in the Netherlands cannot examine decisions on
such requests on the merits.
3. The applicant also complains that, contrary to Article 13 of the
Convention, he had no effective domestic remedy in the Netherlands for
his claims.
4. The applicant submits that in Angola he cannot freely express his
views on the civil war. He complains that his expulsion to Angola by
the Netherlands authorities would, therefore, also constitute a
violation of his rights under Articles 9 and 10 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 February 1991 and registered
on 8 March 1991.
On 8 March 1991, the Commission decided, under Rule 36 of its
Rules of Procedure, to indicate to the respondent Government that it
was desirable in the interests of the parties and the proper conduct
of the proceedings before the Commission not to expel the applicant to
Angola until the Commission had had an opportunity to examine the
application.
The Commission also decided to invite the Government to submit
observations in writing on the admissibility and merits of the
application. Pending the submission of the Government's observations,
the Commission prolonged the indication under Rule 36 several times.
The indication expired on 10 March 1992.
The Government's observations were submitted on 15 January 1992
and the applicant's reply thereto was submitted on 4 March 1992.
THE LAW
1. The applicant complains that his expulsion to Angola amounts to
inhuman or degrading treatment in breach of Article 3 (Art. 3) of the
Convention which reads as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
He also invokes Article 2 para. 1 (Art. 2-1) of the Convention
which provides as follows:
"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."
The Government submit that, as a result of their inquiry into the
situation in Angola, it may be assumed that the hostilities in Angola
have ceased and that the peace agreement between the MPLA and the
UNITA, which has been concluded on 31 May 1991, is being observed. The
Government are further of the opinion that the applicant failed to
submit substantial grounds for his claims under Article 2 (Art. 2) of
the Convention and has not shown in a convincing way the existence of
a real and personal risk that upon his return to Angola he will be
subject to treatment contrary to Article 3 (Art. 3) of the Convention.
The applicant submits that even at present his chances of
survival are nil in view of the continuing violence and general food
shortage in Angola. The applicant is, in any event, of the opinion
that the case will have to be considered in the light of the facts as
they were at the time the Deputy Minister of Justice on 18 June 1990
denied suspensive effect to the applicant's request for review. On
this basis the applicant is of the opinion that he has submitted
sufficient and convincing information, indicating that if he had been
expelled at that time he would undoubtedly have been arrested, possibly
detained and in any event forced to fight at the front, which in his
opinion constitutes treatment contrary to Article 3 (Art. 3) of the
Convention.
The Commission recalls its constant case-law according to which
the Convention guarantees no right of residence or right of asylum in
a State of which the person concerned is not a national (cf., for
example, No. 1802/62, Dec. 26.3.63, Yearbook 6 pp. 463, 479).
Expulsion is not as such one of the matters governed by the Convention
(No. 7256/75, Dec. 10.12.76, D.R. 8 p. 161). As a result, a measure
of expulsion is not in itself contrary to the Convention.
The Commission recalls, however, that its case-law also
consistently holds that the deportation of an alien may, in exceptional
circumstances, raise an issue under Article 3 (Art. 3) of the
Convention where there are serious reasons for believing that the
person in question would be exposed in the country to which he is to
be expelled to treatment prohibited by that Article (cf. No. 12877/87,
Dec. 7.7.87, D.R. 53 p. 254).
The Commission must therefore examine whether there are in this
case serious reasons for believing that the applicant, if expelled to
Angola, would be exposed to treatment prohibited by Article 3 (Art. 3).
In its Cruz Varas judgment, the Court noted as one of the
principles relevant to its assessment of the risk of ill-treatment the
following:
"(...)
(2) ... the existence of the risk must be assessed
primarily with reference to those facts which were known or
ought to have been known to the Contracting State at the
time of the expulsion; the Court is not precluded however
from having regard to information which comes to light
subsequent to the expulsion. This may be of value in
confirming or refuting the appreciation that has been made
by the Contracting Party or the well-foundedness or
otherwise of an applicant's fears; ..." (Eur. Court H.R.
Cruz Varas judgment of 20 March 1991, Series A no. 201,
para. 76).
The Commission considers that the general situation in Angola at
the time the applicant's requests were rejected by the Dutch
authorities was undoubtedly unstable. However, the applicant has not
substantiated in which respect his personal situation at that time was
any worse than that of the generality of other young Angolan men who
were called up for active service in the governmental MPLA forces (cf.
mutatis mutandis, Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, para. 111, to be published in Series A no. 215).
The Commission finds in this respect not unimportant that the
applicant left Angola on 2 March 1990 holding a valid passport and exit
visa.
In any event, the Commission notes that on 31 May 1991 a peace
agreement has been concluded between the Angolan government and the
UNITA resistance movement and that on 12 July 1991 an Amnesty Act has
been issued, providing amnesty for, inter alia, persons having refused
military service and deserters.
In these circumstances the Commission considers that the grounds
the applicant has presented in support of his claim are not sufficient
to allow the conclusion that his expulsion to Angola would amount to
a violation of Article 3 or Article 2 (Art. 3, 2) of the Convention.
The Commission, therefore, finds that the application, in this
respect, is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the civil courts do not control the merits of decisions
by the Deputy Minister concerning asylum and residence permits but only
examine their lawfulness.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair (...) hearing (...) by an independent and
impartial tribunal established by law."
The Commission recalls that a decision whether an alien should
be allowed to stay in a country or be expelled does not involve a
determination of the alien's civil rights or obligations or a criminal
charge within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention (cf. No. 9990/82, Dec. 15.5.84, D.R. 39 p. 119).
The Commission is, therefore, of the opinion that this complaint
must be rejected for being incompatible ratione materiae with the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant further complains that he did not have an effective
remedy and has invoked Article 13 (Art. 13) of the Convention which
provides as follows:
"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."
However, according to the constant case-law of the Convention
organs, "Article 13 (Art. 13) cannot reasonably be interpreted so as
to require a remedy in domestic law in respect of any supposed
grievance under the Convention that an individual may have, no matter
how unmeritorious his complaint may be; the grievance must be an
arguable one in terms of the Convention" (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no 131, para. 52).
The Commission considers that the applicant cannot be said to
have had an arguable claim under the Convention and, in any case,
noting that an appeal to the Council of State could have resulted in
the quashing of the decision of the Deputy Minister, finds that such
an appeal would have constituted an effective remedy within the meaning
of Article 13 (Art. 13) of the Convention.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant finally complains that his expulsion to Angola
would violate his rights under Articles 9 and 10 (Art. 9, 10) of the
Convention, as in Angola he cannot freely express his views on the
civil war.
Article 9 (Art. 9) of the Convention protects the right to
freedom of thought, conscience and religion. Article 10 (Art. 10) of
the Convention concerns the right to freedom of expression.
The Commission cannot examine complaints concerning alleged
violations of the Convention by the authorities of a country, which is
not a party to the Convention.
This complaint must, therefore, be rejected for being
incompatible ratione personae with the Convention within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy