AS TO THE ADMISSIBILITY OF
Application No. 16703/90
by N.E.
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 July 1990, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. J. RAYMOND, 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 9 June 1990 by
N.E. against the Netherlands and registered on 11 June 1990
under file No. 16703/90;
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 national of Zaire born in 1963. He is
apparently a professional actor and a student. He is at present
resident in Anna Paulowna, the Netherlands. Before the Commission he
is represented by Mr. L.B.J. Movig, a lawyer practising in Den Helder.
The facts as submitted by the applicant may be summarised as
follows.
The applicant was apparently enrolled as a student at the
"Institut Supérieur des Techniques Appliquées" at Kinshasa, Zaire. He
appears to have completed his studies there in 1989. As an actor he
took part in plays which criticize the Government of Zaire. He was
also responsible for the public relations of this theatre group, which
was made up of students and performed for students.
On 25 February 1989, during a period of student unrest in
Kinshasa, the applicant was arrested by the "Brigade Spéciale de
Recherche et de Surveillance" (BSRS), and detained at the "CIRCO"
military barracks.
In these barracks, the applicant was beaten upon arrival, with
batons. He was placed in a cell of 2 x 4 metres with approximately 30
occupants. The first four days he received no food. The cell had no
windows nor toilet facilities. During his time in this cell, the
applicant was not beaten or otherwise mistreated. He was never
charged with a crime, nor did he consult a lawyer.
On 29 April 1989 he was transferred to the General Hospital of
Kinshasa because he had contracted malaria. On 20 May 1989, a public
holiday, he managed to escape from the hospital and then went into
hiding. Through the help of a friend, the applicant's uncle procured
a passport under a false name and an airline ticket to Brussels.
On 3 June 1989 he flew to Brussels, where he handed the false
passport and ticket to a person who had accompanied him. On 4 June
1989 he got a lift to Goes, the Netherlands, where, on 5 July, he
requested asylum. He was in possession of the following identity
documents:
a. Zaire identity card issued 23 July 1980,
b. "Carte d'Artiste" (actor's identity card) issued
8 March 1989,
c. Birth certificate issued 11 August 1986.
On 28 September 1989 the Deputy Minister of Justice rejected
the applicant's asylum request and refused to grant him a residence
permit. It was considered, inter alia, that the applicant had not been
politically active and that his story was vague and not entirely
credible. The applicant requested a review of this decision, but this
appeal was not granted suspensive effect for his expulsion.
He instituted summary proceedings requesting suspensive effect
for his appeals. On 8 June 1990 this was refused by the President of
the Regional Court of The Hague. The President considered, inter
alia, that the authorities of Zaire appeared to be treating students
harshly. However, the applicant's identity card of 23 July 1980
states that he is an "employee". Furthermore, the "Carte d'Artiste",
which was issued while he claims to have been in detention states
"comédien, chargé de rel. publ. Discipline: Théatre", which seems to
imply that he is a professional actor. Therefore it would not appear
that he has to fear being treated as a dissident student by the
authorities in Zaire. Finally, the President considered that the
applicant did not face a real risk of treatment as prohibited by
Article 3 of the Convention.
COMPLAINTS
The applicant complains that, if returned to Zaire, he will
face prosecution for having escaped from the hospital where he was
detained. Furthermore, as a dissident student he faces harsh and
inhuman treatment at the hands of the authorities of Zaire. He
submits numerous articles of the press and statements by Amnesty
International to illustrate the violent reprisals by the Zaire
authorities of student demonstrations, notably in Kinshasa in February
1989 and in Lubumbashi in April and May 1990. He also submits that
the Belgian Government is investigating the situation in Zaire with a
view to reviewing its policies in accordance with respect for human
rights in Zaire. The applicant invokes Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 June 1990 and registered
on 11 June 1990.
On 12 June 1990 the Acting President of the Commission decided
not to make an indication under Rule 36 of the Rules of Procedure to
the respondent Government that the applicant not be expelled to Zaire
pending the Commission's examination of the application. The applicant
was invited to submit further information regarding the risks which he
faced in Zaire. He submitted this information on 26 June 1990.
THE LAW
The applicant complains that if returned to Zaire he will be
prosecuted for having escaped from custody and will be ill-treated for
his dissident activities with a student theatre group. 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 both the Deputy
Minister of Justice and the President of the Regional Court in summary
proceedings considered that the applicant's story was not entirely
credible.
From the applicant's submissions it is not clear whether or
not he had completed his studies. Nor is it clear whether he was
involved in the theatre group in a professional capacity or as a
student.
Furthermore, it appears from the articles of the press and the
statements by Amnesty International as submitted by the applicant that
the harsh behaviour of the authorities of Zaire towards students only
manifests itself during periods of student demonstrations and unrest.
It was during such a period that the applicant claims to have been
arrested, and the Commission notes that he was never formally charged.
In these circumstances the Commission considers that the
grounds which the applicant presents in support of his complaint are
not sufficient to substantiate the 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 Zaire.
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
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (J.A. FROWEIN)
Full & Egal Universal Law Academy