AS TO THE ADMISSIBILITY OF
Application No. 33708/96
by Beatrice NGALOLA KASHAMA
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 19 August 1996 by
Beatrice NGALOLA KASHAMA against the Netherlands and registered on
8 November 1996 under file No. 33708/96;
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 Zairean national, born in 1969, and currently
resides in the Netherlands. In the proceedings before the Commission,
the applicant is represented by Mr P. Bouman, a lawyer practising in
Helmond, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 1 November 1995, an unidentified woman visited the applicant's
privately owned tailor's workshop in Kinshasa. After having looked at
the applicant's stock she told the applicant she would return with
fabric from which she wished the applicant to make "boubous", a
traditional Zairean dress.
The woman returned to the applicant's workshop on 3 November 1995
and stated that the fabric had not arrived yet. Later on the same day,
the fabric was delivered in the presence of the unidentified woman, who
explained she needed the boubous before 24 November 1995, on which day
the ruling Zairean President would be 30 years in power. On the fabric
the letters M.P.R. were printed. The letters M.P.R. are the initials
of the ruling political party in Zaire.
The applicant informed the woman that she could not accept the
order, as her brother had been killed in the course of a demonstration
held on 29 July 1995. The woman did not accept the applicant's refusal
and asked her "Who is stronger, you or the M.P.R.?"
When the applicant arrived at her workshop on 20 November 1995,
soldiers had arrested the applicant's four employees and seized the
applicant's stock and sewing machine. Upon her arrival the applicant
was also arrested by soldiers and taken away in a jeep. In the car, she
was threatened and sexually harassed by the soldiers. The soldiers
released her after she had paid them US$ 3.000.
After her release, the applicant went in hiding in the house of
one of her customers. On 25 February 1996, with the aid of a third
person to whom she had paid US$ 7.000, the applicant left Zaire for
Belgium. She arrived in the Netherlands on 28 February 1996, where she
requested asylum, or alternatively a residence permit on humanitarian
grounds.
On 29 February 1996, the State Secretary of Justice
(Staatssecretaris van Justitie) rejected the applicant's requests. The
State Secretary noted that the applicant could only name four kinds of
fabric, could not name different kinds of yarn, did not know what a
pattern is, did not know how to make jackets, sweaters and shirts and
did not know with what fabrics are coloured. Given that the applicant
stated that she privately owned a tailor's workshop and also that she
worked there herself, the State Secretary concluded that the
applicant's very limited knowledge of her trade strongly affected the
credibility of her account.
The State Secretary further considered that the applicant had not
made it plausible that she, by refusing to make certain clothes had
identified herself as a political opponent of the current Zairean
regime. In this respect, the State Secretary also noted that, after the
events on 20 November 1995, the applicant had remained in Kinshasa for
a period of four months without having encountered any problems from
the side of the authorities.
This decision was served on the applicant on the same day. She
was further informed that she had to leave the Netherlands immediately.
On 1 March 1996, the applicant filed an objection
(bezwaarschrift) with the State Secretary of Justice against the
latter's decision of 29 February 1996. On the same day, the applicant
requested the President of the Aliens' Chamber (Vreemdelingenkamer) of
the Regional Court (Arrondissementsrechtbank) of The Hague to grant an
interim measure (voorlopige voorziening) allowing her to await the
outcome of the objection proceedings in the Netherlands.
Following a hearing held on 15 March 1996, the President of the
Regional Court rejected the applicant's request for an interim measure
on 18 March 1996. Like the State Secretary, the President found the
applicant's account not credible. In reaching this finding, the
President had regard to the applicant's very limited knowledge of her
alleged trade and the fact that it had remained unclear how the
applicant had obtained, within a limited period, the amount of US$
10.000 which she had used for leaving Zaire. The President further
considered that the applicant had never been politically active and had
only left Zaire several months after the alleged events.
Insofar as the applicant relied on Article 3 of the Convention,
the President held that there were no circumstances indicating that her
expulsion to Zaire would entail a genuine risk for the applicant of
treatment contrary to this provision. The President further found no
circumstances on the basis of which a residence permit on humanitarian
grounds should be granted.
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 her 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 29 February 1996 and rejected it as ill-
founded.
COMPLAINTS
1. The applicant complains under Article 2 of the Convention that
her expulsion to Zaire would certainly result in her being killed by
the present regime.
2. The applicant complains under Article 3 of the Convention that
her expulsion to Zaire will result in a real risk of ill-treatment,
given the fact that she is wanted by the Zaïrean authorities.
3. The applicant complains under Article 6 of the Convention, both
in itself and in conjunction with Article 13 of the Convention in that
she cannot submit her case to an independent and impartial tribunal in
such a way that this provides her with an effective remedy. She submits
in this respect that the President of the Regional Court did not
examine the full merits of her case.
4. The applicant complains that her expulsion to Zaire constitutes
a violation of her rights under Articles 9 and 10 of the Convention in
that she cannot exercise these rights in Zaire.
THE LAW
1. The applicant complains under Article 2 (Art. 2) of the
Convention that her expulsion to Zaire would certainly result in her
being killed by the present regime.
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."
The Commission recalls that Article 2 (Art. 2) contains two
separate though interrelated basic elements. The first sentence of
paragraph 1 sets forth the general obligation that the right to life
shall be protected by law. The second sentence of this paragraph
contains a prohibition of intentional deprivation of life, delimited
by the exceptions mentioned in the second sentence itself and in
paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73 p. 155).
The Commission finds nothing to indicate that the expulsion of
the applicant would amount to a violation of the general obligation
contained in the first sentence of paragraph 1.
As to the prohibition of intentional deprivation of life, the
Commission does not exclude that an issue might be raised under Article
2 (Art. 2) in circumstances in which the expelling State knowingly puts
the person concerned at such high risk of losing his or her life as for
the outcome to be a near-certainty. The Commission considers, however,
that a "real risk" - within the meaning of the case-law concerning
Article 3 (Art. 3) of the Convention - of loss of life would not as
such necessarily make expulsion an "intentional deprivation of life"
prohibited by Article 2 (Art. 2), although it would amount to inhuman
treatment within the meaning of Article 3 (Art. 3) (cf. No. 25894/94,
Bahaddar v. the Netherlands, Comm. Rep. 13.9.96, paras. 72-81).
It is not necessary for the Commission to decide in what precise
circumstances the risk of the person being killed might constitute a
violation of Article 2 (Art. 2) in a case like the present one, since
in any event the facts of the case do not disclose such a risk.
The Commission notes that it appears from her submissions that
the applicant fears that she may be killed if expelled. The Commission
notes that the applicant has not been sentenced to death, has not
submitted that she is facing any criminal proceedings on charges
carrying capital punishment or that she has received any death threats.
In these circumstances, the Commission cannot find that the
applicant's expulsion to Zaire raises an issue under Article 2
(Art. 2) of the Convention.
It follows that this complaint must be rejected as manifestly-
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 3 (Art. 3) of the
Convention that her expulsion to Zaire will result in a real risk of
ill-treatment, given the fact that she is wanted by the Zaïrean
authorities.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission observes that Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations including Article 3 (Art. 3), to control the entry,
residence and expulsion of aliens. Furthermore it must be noted that
the right to political asylum is not protected in either the Convention
or its Protocols. However, an expulsion decision may give rise to an
issue under Article 3 (Art. 3), and hence engage the responsibility of
a State under the Convention, where substantial grounds have been shown
for believing that the person concerned faced a real risk of being
subjected to torture or to inhuman or degrading treatment or punishment
in the country to which he or she is to be expelled. A mere possibility
of ill-treatment is not in itself sufficient to give rise to a breach
of this provision (cf. Eur. Court HR, Vilvarajah and Others v. United
Kingdom judgment, ibid., p. 34, para. 103, and p. 37, para. 111).
The Commission also recalls that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 (Art. 3) (cf. No. 27776/95, Dec. 26.10.1995, D.R. 83, p.
101). An assessment of whether such a treatment is in breach of this
provision, must be a rigorous one in view of the absolute character of
this Article (cf. Eur. Court HR, Chahal v. United Kingdom judgment,
ibid., para. 96).
The Commission has examined the applicant's submissions and the
documents in support of her application. The Commission notes that the
applicant has been unable to answer a number of basic questions
relating to her alleged trade. It cannot, therefore, find the national
authorities' findings as regards the credibility of the applicant's
account unreasonable.
The Commission further notes that the alleged events on
20 November 1995 apparently gave the applicant no cause to flee the
country immediately, but only after four months. The Commission further
notes that the applicant's allegation that she is wanted by the Zairean
authorities has remained wholly unsubstantiated.
The Commission finds that the applicant's submissions concerning
her personal situation, as well as the general situation, does not
establish that her position differs from that of the generality of
inhabitants of Zaire.
The Commission is, therefore, of the opinion that it has not been
established that the applicant will be exposed to a real risk of being
subjected to treatment contrary to Article 3 (Art. 3) of the Convention
if returned to Zaire.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains under Article 6 (Art. 6) of the
Convention, both in itself and in conjunction with Article 13
(Art. 13) of the Convention, in that she cannot submit her case to an
independent and impartial tribunal in such a way that this provides her
with an effective remedy.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations ...
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."
The Commission recalls its constant case-law, that Article 6
para. 1 (Art. 6-1) of the Convention 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
her argument that her 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 she did in fact avail herself.
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.
4. The applicant finally complains that her expulsion to Zaire
constitutes a violation of her rights under Articles 9 and 10
(Art. 9, 10) of the Convention in that she cannot exercise these rights
in Zaire.
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.
Even assuming that the applicant's expulsion could raise issues
under these provisions of the Convention, the Commission notes that
this complaint has remained unsubstantiated.
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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy