INCEDURSAN v. THE NETHERLANDS



                      AS TO THE ADMISSIBILITY OF

                      Application No. 33124/96

                      by X.

                      against the Netherlands

     The European Commission of Human Rights sitting in private on

20 October 1997, the following members being present:

           Mr    S. TRECHSEL, President

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM    E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, 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 27 August 1996 by

X. against the Netherlands and registered on 24 September 1996 under

file No. 33124/96;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     6 May 1997 and the observations in reply submitted by the

     applicant on 21 July 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Turkish citizen of Kurdish origin, born in

1952, and at present residing in the Netherlands. Before the Commission

he is represented by Ms G.E.M. Later, a lawyer practising in The Hague.

     The facts of the case, as submitted by the parties, may be

summarised as follows.

     The applicant entered the Netherlands on 5 June 1995 and, on

7 June 1995, requested asylum, or alternatively a residence permit for

humanitarian reasons. According to the applicant, he risked political

persecution in Turkey for his known sympathies for the cause of the

Kurdish people. He stated that he had been politically active between

1984 and 1992 at the municipal level and that his brother I.'s

political activities for the Kurdish people had made I., a founding

member of the political party HEP (Halkin Emek Partisi - People's

Working Party; at present an illegal and dissolved pro-Kurdish party),

a public figure nationwide. As a result of these political activities,

the Turkish authorities started to exert pressure on the applicant's

family.

     The applicant stated that he had been arrested in 1992 on five

occasions and that he had been detained for periods varying from one

week to twenty days in the course of which he had been questioned and

ill-treated. He also stated that, together with his brother I. and

thirteen others, he had been prosecuted on charges of aiding and

abetting the PKK (Kurdish Workers' Party - an armed separatist

movement). In 1994 he learned that, by judgment of 23 December 1992,

the State Security Court of Diyarbakir had acquitted him and all other

accused of these charges for lack of evidence. The applicant further

stated that, upon the advice of his family and a local official, he had

since 1992 been living in hiding in different places in Turkey under

false identities, that of the persons who had been prosecuted together

with him in 1992, five persons had been killed at some later point in

time and that his brother I. had disappeared and is presumed dead. He

stated that he had left Turkey upon the advice of his family, who told

him that the police regularly visit them and are looking for him.

     On 25 July 1995, the State Secretary for Justice

(Staatssecretaris van Justitie) rejected the applicant's requests. As

regards the applicant's request for asylum, the State Secretary

considered that it had not been established that the applicant had

substantial grounds to fear persecution in Turkey. The State Secretary

considered in this respect that, apart from the five times in 1992 when

the applicant had been arrested and detained for a certain period of

time without any further consequences and the criminal proceedings

against him which had in fact ended in an acquittal, the applicant had

since then not encountered any problems with the authorities.

     As regards his request for a residence permit, the State

Secretary recalled that under Article 11 para. 5 of the Aliens Act

(Vreemdelingenwet) a residence permit can be refused on grounds of

public interest, since the Dutch authorities in applying Article 11

para. 5 of the Aliens Act follow a restrictive immigration policy in

view of the population and employment situation in the Netherlands. As

the applicant's presence in the Netherlands could not be regarded as

serving any specific Dutch interests and as no compelling humanitarian

reasons were found to exist on the basis of which a residence permit

could be issued, the State Secretary of Justice considered that the

applicant did not satisfy the criteria for the issuing of a residence

permit.

     On 23 August 1995, the applicant filed an objection

(bezwaarschrift) against this decision with the State Secretary. In

support of his objection, the applicant stated that in his political

activities he had always strongly supported the interests of the

Kurdish people, that the HEP party had been declared illegal in 1993

and that, according to an official report (ambtsbericht) of the

Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse

Zaken) of 12 January 1995, criminal proceedings had been instituted

against parliamentarians of that party. Referring to a letter of

20 January 1995 of Amnesty International setting out in a general way

the persecution of members and supporters of the pro-Kurdish parties,

the applicant argued that since he was known as a political activist,

as a member of a known Kurdish family and as the brother of a prominent

member of a prohibited party, his expulsion to Turkey would expose him

to persecution on grounds of illegal political activities supporting

the cause of the Kurdish people.

     Pursuant to Article 32 of the Aliens Act, the State Secretary

decided on 20 October 1995 that the applicant was not allowed to stay

in the Netherlands pending any appeal proceedings instituted by him and

ordered him to leave the Netherlands within two weeks.

     On 30 October 1995, the applicant requested the President of the

Aliens' Chamber (Vreemdelingenkamer) of the Regional Court (Arrondisse-

mentsrechtbank) of The Hague to grant an interim measure (voorlopige

voorziening) allowing him to await the outcome of the objection

proceedings in the Netherlands.

     Following a hearing held on 12 March 1996, the President of the

Aliens' Chamber rejected the applicant's request for an interim measure

on 19 March 1996. The President noted that the applicant had stated

that he had only been politically active when this was legally

possible, that he had been acquitted in 1992 and that in the period

between the end of 1992 and his departure to the Netherlands in 1995,

he had been able to live in Turkey. The President did not find it

established that the Turkish authorities still considered the applicant

as an important political opponent in whom they were actively

interested.

     Insofar as the applicant relied on Article 3 of the Convention,

the President found no substantial grounds on the basis of which the

existence of a genuine and personal risk of treatment contrary to this

provision on his return to Turkey had to be assumed. The President

further found that no compelling humanitarian reasons for granting the

applicant a residence permit had become apparent.

     Having reached this finding and as no other legal rules appeared

to have been violated, the President concluded that the State

Secretary's decision not to allow the applicant to remain in the

Netherlands pending the outcome of the proceedings regarding the

applicant's objection could not be regarded as unreasonable. As the

applicant's objection did not stand a reasonable chance of success and

as a further investigation was not held to be able to contribute to the

examination of the applicant's case, the President, in pursuance of

Article 33b of the Aliens Act, also decided the merits of the

applicant's objection against the State Secretary's decision of

25 July 1995 and rejected it as ill-founded.

     On 30 May 1996, the applicant requested the State Secretary of

Justice to review (herziening) his request for asylum, or alternatively

for a residence permit on humanitarian grounds. He emphasised that he

had only been able to live in Turkey between 1992 and 1995 under false

identities, that two of his brothers had also fled Turkey, that in 1994

his brother I. had been prosecuted on charges of illegal political

activities related to the PKK and that it must be assumed that he had

died given the fact that several obituaries had been published since.

The applicant further requested not to be expelled pending the outcome

of his request for a revision.

     After having considered the applicant's arguments, the State

Secretary of Justice rejected the revision request on 5 August 1996,

finding no reasons for a revision of the previous rejection of the

applicant's requests.

     By letter of 23 August 1996, the State Secretary reminded the

applicant that he had been ordered to leave the Netherlands on

20 October 1995.

     On 26 August 1996, the applicant filed an objection against the

decision of 5 August 1996. On the same day the applicant submitted a

new request to the President of the Aliens' Chamber of the Regional

Court of The Hague to grant an interim measure allowing him to await

the outcome of the objection proceedings in the Netherlands.

     Following a hearing held on 3 December 1996, the President of the

Aliens' Chamber rejected the applicant's request for an interim measure

on 19 December 1996. Insofar as the applicant argued that the

President, in the decision of 19 March 1996, had committed errors in

the assessment of the applicant's situation, it was held that this

finding could not be reviewed in the present proceedings as

Article 33(e) of the Aliens Act excluded an appeal against such

decisions. The President further found that no new facts or

circumstances had become apparent.

     Referring to the previous decision of 19 March 1996, the

President of the Aliens' Chamber held that there could be no reasonable

doubt that there was no danger of persecution within the meaning of

Article 15 para. 1 of the Aliens Act. No indication was found for the

assumption that the objection of 26 August 1996 would stand a

reasonable chance of success.

     Having reached this finding and as no other legal rules appeared

to have been violated, the President concluded that the State

Secretary's decision not to allow the applicant to remain in the

Netherlands pending the outcome of the proceedings regarding the

applicant's objection could not be regarded as unreasonable. As the

applicant's objection did not stand a reasonable chance of success and

as a further investigation was not held to be able to contribute to the

examination of the applicant's case, the President, in pursuance of

Article 33b of the Aliens Act, also decided the merits of the

applicant's objection of 26 August 1996 and rejected it as ill-founded.

COMPLAINT

     The applicant complains that his expulsion to Turkey would expose

him to a real risk of being subjected to treatment contrary to

Article 3 of the Convention and could possibly result in his being

killed without any due process of law and thus amount to a violation

of Article 2 of the Convention and Protocol No. 6.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 27 August 1996 and registered

on 24 September 1996.

     On 25 February 1997 the Commission decided to communicate the

applicant's complaint concerning Articles 2 and 3 of the Convention and

Protocol No. 6 to the respondent Government and to declare the

remainder of the application inadmissible.

     On 18 April 1997 the Commission indicated to the respondent

Government, pursuant to Rule 36 of the Commission's Rules of Procedure,

that it was desirable not to expel the applicant pending the

proceedings before the Commission. This indication was prolonged

several times, most recently on 18 September 1997.

     The Government's written observations were submitted on

6 May 1997.  The applicant replied on 21 July 1997.

     On 19 September 1997 the Commission granted the applicant legal

aid.

THE LAW

     The applicant complains that his expulsion to Turkey would expose

him to a real risk of being subjected to treatment contrary to

Article 3 (Art. 3) of the Convention and could possibly result in his

being killed without any due process of law and thus amount to a

violation of Article 2 of the Convention and Protocol No. 6 (P6-2).

     Article 3 (Art. 3) of the Convention provides:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     Article 2 (Art. 2) of the Convention reads as follows:

     "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.

     2.    Deprivation of life shall not be regarded as inflicted in

     contravention of this Article when it results from the use of

     force which is no more than absolutely necessary:

           a.    in defence of any person from unlawful violence;

           b.    in order to effect a lawful arrest or to prevent the

     escape of a person lawfully detained;

           c.    in action lawfully taken for the purpose of quelling

     a riot or insurrection."

     Protocol No. 6, insofar as relevant, provides:

                           "Article 1 (P6-1)

     The death penalty shall be abolished. No one shall be condemned

     to such penalty or executed.

                           Article 2 (P6-2)

     A State may make provision in its law for the death penalty in

     respect of acts committed in time of war or of imminent threat

     of war; such penalty shall be applied only in the instances laid

     down in the law and in accordance with its provisions...."

     The Government submit that the current policy as regards

expulsion of Turkish Kurd asylum seekers is based on the findings in

an official Report (ambtsbericht) of the Ministry of Foreign Affairs

of 2 July 1996 on the position of Kurds in Turkey. In this report the

views of the United Nations High Commissioner for Refugees and Amnesty

International on this topic have been taken into account. According to

this official Report Turkish citizens who work for the Kurdish cause

and are guilty, in the opinion of the central and local authorities,

of separatist activities will often expose themselves to criminal

prosecution proceedings. Persons in respect of whom there is no

question of prosecution under the criminal law may remove themselves

from any unwanted attention on the part of the authorities by settling

elsewhere in Turkey. An asylum seeker must, therefore, argue

convincingly that facts and circumstances exist in relation to him

personally which justify his fear of persecution within the meaning of

the Geneva Convention on the status of refugees.

     The Government submit that the mere fact that the applicant

belongs to the Kurdish minority in Turkey is not sufficient grounds to

believe that he has reason to fear persecution. The Government further

submit, although accepting that the applicant was politically active

in the past, that it cannot be said that, if expelled to Turkey, the

applicant would have reason to fear persecution or would run a real

risk of treatment contrary to Article 3 (Art. 3) of the Convention. The

fact that the applicant belongs to a family known to be politically

active is not sufficient for assuming that he himself is held to be an

opposition member. For the purposes of Article 3 (Art. 3), the personal

circumstances of the applicant are relevant and these circumstances are

not comparable to those of his brother I.

     According to the Government, it has not been argued nor has it

appeared that the applicant is currently wanted by the Turkish

authorities. He was never officially a member of an illegal party and,

at the time of his political activities, he only represented then legal

parties. The Government consider it unlikely that the applicant would

have been registered by the Turkish authorities as an important

political opposition figure. The Government further emphasise that the

applicant was acquitted of aiding and harbouring members of an illegal

organisation and "commending" acts constituting criminal offences by

judgment of 23 December 1992 and that it has neither been stated nor

shown that he is currently, or will be in the future, the subject of

a criminal investigation into these charges.

     In this connection the Government consider it relevant that the

applicant's wife and children never had problems with the Turkish

authorities such as to indicate that the applicant was wanted on

account of either his own activities or those of his brother.

     According to the Government, the applicant has the option of

taking refuge, if that should still be necessary, within his own

country. The Government note that, after the events in 1992, the

applicant lived in a number of places between 1992 and his departure

for the Netherlands in 1995. During this time he had a normal life and

his wife and children were able to join him without encountering any

obstacles.

     The Government conclude that there are no grounds for assuming

that the applicant, if expelled, would run a real risk of treatment in

violation of Article 3 (Art. 3) of the Convention.

     The applicant submits that since 1992 he did not live in Istanbul

without any problems. He lived there with false identity papers and at

different addresses. The applicant further submits that in the meantime

the authorities have traced his family in Istanbul and have questioned

them about the applicant and his brothers R. and B., who like the

applicant have applied for asylum in Europe. In the applicant's opinion

it is clear that he is wanted by the authorities and that he has no

alternative refuge possibilities in Turkey.

     The applicant submits that, although there are no written

documents to show that criminal proceedings against him are currently

pending, this does not mean that he is under no criminal suspicion or

that he is able to return to Turkey and live somewhere under his own

identity.

     The applicant argues that, according to Amnesty International and

the United Nations High Commissioner for Refugees, there is no

alternative refuge inside the country for persons who are suspected of

having links with the PKK. These links will be assumed by the Turkish

authorities in the applicant's case given his family ties with his

brother I. who is referred to as the right-hand man of the PKK leader,

the applicant's own activities for the HEP and his involvement in the

Kurdish cause in the past within the framework of legal parties. The

existence of suspicions against him are obvious, given the fact that

he has been arrested and detained on several occasions in 1992.

     The applicant further submits that his acquittal in 1992 does not

mean that there are no longer any suspicions against him. In this

connection, the applicant stresses that of the fifteen persons

acquitted in 1992, four have been killed since - including his brother

I. - and another one has been detained and severely ill-treated. He

fears a similar fate.

     The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of fact and law under

the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission concludes,

therefore, that the application is not manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other grounds for declaring it inadmissible have been established.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits

of the case.

        M. de SALVIA                        S. TRECHSEL

          Secretary                          President

      to the Commission                   of the Commission

 

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