AS TO THE ADMISSIBILITY OF
Application No. 33124/96
by Abdurahim INCEDURSUN
against the Netherlands
The European Commission of Human Rights sitting in private on
25 February 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
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
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 27 August 1996 by
Abdurahim INCEDURSUN against the Netherlands and registered on
24 September 1996 under file No. 33124/96;
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
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 applicant, 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 visits 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,
the applicant 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. These proceedings are currently still
pending.
On 26 August 1996, 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 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.
COMPLAINTS
1. 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.
2. The applicant complains under Article 6 para. 1 of the
Convention, both in itself and in conjunction with Article 13 of the
Convention, that the Dutch authorities and the President of the
Regional Court have incorrectly assessed the applicant's problems by
having insufficiently considered the evidence submitted by the
applicant in support of his requests.
3. The applicant finally complains that he is currently residing
illegally in the Netherlands and that, if arrested, he will be detained
with a view to his expulsion which in view of the problems related to
the proceedings before the President of the Regional Court will be in
violation of Article 5 of the Convention.
THE LAW
1. 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) to the
Convention.
The Commission is of the opinion that it cannot, at this stage
of the proceedings, determine the admissibility of this part of the
application and it is therefore necessary, in accordance with Rule 48
para. 2 (b) of the Commission's Rules of Procedure, to give notice of
this part of the application to the respondent Government.
2. The applicant complains under Article 6 (Art. 6) of the
Convention, both in itself and in conjunction with Article 13
(Art. 6+13) of the Convention, that the Dutch authorities and the
President of the Regional Court have incorrectly assessed the
applicant's problems by having insufficiently considered the evidence
submitted by the applicant.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
... hearing ... by a ... tribunal established by law...."
Article 13 (Art. 13) of the Convention 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."
Insofar as the applicant complains under Article 6 para. 1
(Art. 6-1) of the Convention, the Commission recalls its constant case-
law, that this provision is not applicable to proceedings concerning
the granting of political asylum or residence permits for aliens (cf.
No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205; and No. 13162/87, Dec.
9.11.87, D.R. 54 p. 211).
Insofar as the applicant relies on Article 13 (Art. 13) of the
Convention, the Commission notes that the applicant's case, including
his argument that his expulsion would amount to a violation of Article
3 (Art. 3) of the Convention, has been examined by the State Secretary
of Justice and the President of the Regional Court, respectively. The
Commission is, therefore, of the opinion that the applicant had
effective remedies within the meaning of Article 13 (Art. 13) of the
Convention, of which he did in fact avail himself.
It follows that this part of the application must also be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
3. The applicant finally complains that he is currently residing
illegally in the Netherlands and that, if arrested, he will be detained
with a view to his expulsion which in view of the problems related to
the proceedings before the President of the Regional Court will be in
violation of Article 5 (Art. 5) of the Convention.
Article 5 (Art. 5) of the Convention, insofar as relevant, reads:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention of a person to prevent
his effecting an unauthorised entry into the country or of a
person against whom action is being taken with a view to
deportation or extradition.
...."
The Commission notes in the first place that the applicant has
failed to raise this complaint in the domestic procedure and has,
therefore, failed to exhaust domestic remedies (cf. No. 19601/92,
Dec. 19.1.95, D.R. 80 p. 46).
Even assuming that the applicant would have duly exhausted
domestic remedies, the Commission notes that it does not appear nor is
it alleged that the applicant has in fact been arrested and detained.
In these circumstances, the Commission finds that the applicant,
as regards his complaint under Article 5 (Art. 5) of the Convention,
cannot be considered a victim within the meaning of Article 25
(Art. 25) of the Convention.
It follows that also this complaint must be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
by a majority,
DECIDES TO ADJOURN the applicant's complaint that his expulsion
would be contrary to his rights under Articles 2 and 3 of the
Convention and Protocol No. 6 to the Convention;
unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy