AS TO THE ADMISSIBILITY OF
Application No. 32884/96
by Ouma OUATTARA
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 March 1998, the following members being present:
MM S. TRECHSEL, President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
Mr F. MARTINEZ
Mrs J. LIDDY
MM L. LOUCAIDES
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
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 5 June 1996 by
Ouma OUATTARA against the United Kingdom and registered on
5 September 1996 under file No. 32884/96;
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
20 November 1996 and further observations submitted on
19 June 1997 and the observations in reply submitted by the
applicant on 4 April 1997 and 17 September 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Côte d'Ivoire, born in 1969 and
currently resident in the United Kingdom. He is represented before the
Commission by Jane Coker and Partners, solicitors practising in London.
The facts of the case, as submitted by the parties, may be summarised
as follows.
The applicant arrived in the United Kingdom on 29 October 1993,
travelling on a passport which he later declared to be the passport of
his brother, El Hadj Darude Ouattara. The applicant, under the name
of El Hadj Darude Ouattara was granted permission to enter and remain
in the United Kingdom for six months as a visitor, with a condition
prohibiting him from taking employment, paid or unpaid.
On 1 November 1993 the applicant claimed asylum by personally
presenting himself at the Home Office. He submitted a self-completion
asylum application dated 8 December 1993, which detailed the factual
basis for his claim to asylum. He claimed that he had been elected as
the public relations officer for the Abidjan branch of the "Front
Populaire Ivoirien" ("FPI"), an opposition political party, and that
he had been responsible for distributing newsletters and magazines and
newspapers critical of the government, in particular the newspapers "La
Voie" and "La Patrie". He stated that on 7 August 1993 he had been
arrested by security agents of the government, known as Loubards. He
described being detained for one week during which time he was
assaulted and stated that he was released on 14 August 1993, after
having been forced to sign a declaration that he would resign from the
FPI and refrain from dissident activities against the authorities and
the President. The applicant states that after his release he was kept
under surveillance, frequently stopped and interrogated, and that his
friends and relatives were also subject to surveillance. The applicant
describes going into hiding in a village from where his mother obtained
a passport for him from an agent, which the applicant subsequently used
to travel to England, entering the country on 29 October 1993 via
Belgium.
In order to obtain more detailed information about his claim, the
applicant was interviewed by the Home Office (Asylum Division) on
31 March 1994. The applicant stated on this occasion that after his
release in August 1993 he went into hiding in his mother's village, he
then travelled to Togo by bus. He stated that he remained in Togo for
what he thought was about one year. From Togo he went to Benin and
from Benin to Belgium by cargo boat. In Belgium he was given a lift
by a German motorist to England. When challenged with the discrepancy
of dates the applicant was unable to give clarifying details. At this
interview the applicant revealed his true name and admitted that the
passport on which he had been travelling bore his brother's name and
details.
The Secretary of State for the Home Department considered the
applicant's asylum claim, but rejected it in a letter dated
30 June 1994. The letter set out the reasons for rejection as follows:
(1) Political activity by recognised opposition groups, for
example the FPI was tolerated in the Ivory Coast. The FPI
had participated in the 1990 parliamentary elections and
won a number of seats. Indeed, the FPI leader had won a
seat. The Secretary of State considered, therefore, that
it would be unlikely that activity with such a group would
lead to harassment or persecution.
(2) On 30 July 1992 an amnesty for political opponents was
announced and still remained in force. The applicant would
be able to benefit.
(3) According to the passport with which the applicant arrived
in the United Kingdom, he entered Togo on 9 March 1993 by
air through Lomé airport (not by land in late August as
claimed) and returned to the Ivory Coast on 15 March 1993.
He had then left the Ivory Coast by air on
17 September 1993 (not in late August 1993 by land to Togo
and then by boat from Benin as claimed) using proper
immigration channels at Abidjan airport. These
discrepancies led the Secretary of State to doubt the
applicant's credibility.
(4) The applicant's credibility was also seriously damaged
because he had failed to admit his true identity when
claiming asylum, revealing it only at an interview almost
five months later.
On 27 August 1994 the applicant was arrested for fare evasion and
interviewed by an immigration officer. Due to the fact that the
applicant had used a false passport to gain entry to the United
Kingdom, he was declared an illegal entrant on the same date and
directions were given under the Immigration Act 1971 ("the 1971 Act")
for his removal from the United Kingdom. The applicant was released
on bail.
On 21 October 1994 the applicant appealed against the decision
refusing his asylum claim. His appeal on the merits was heard by a
Special Adjudicator on 20 February 1996. The applicant himself gave
oral evidence at this hearing and he was represented by the Refugee
Legal Centre. At this appeal the applicant produced a report by
Amnesty International, dated 13 July 1994 and a medical report dated
15 November 1995. The medical report details the findings of a medical
examination of the applicant, carried out on 15 November 1995 by
Dr Peel of the Medical Foundation for the Care of Victims of Torture.
The summary of this medical report states as follows:
"[The applicant] is a 26 year old Ivorean, who gives a
story of having been arrested with some friends while
selling political newspapers. During his arrest his
clavicle was fractured and he was stabbed in two places.
Once arrested he was kept in insanitary conditions and
developed skin infections. He received no medical
treatment, and was fed poorly. He was interrogated daily,
but not beaten and was released after a week. He then fled
to his village, but was not safe there, so after a few days
he left the country. Mr Ouattara describes some
psychological symptoms that are typical of those who have
suffered such treatment. He also has scars on his body,
which are very unlikely to have been caused in any other
way than that he describes."
On 13 March 1996 the Special Adjudicator dismissed the
applicant's appeal. In his "Determination and Reasons" the Special
Adjudicator stated:
"The appellant bases his claim for asylum on the fact that
he is a member of the FPI and has been persecuted for his
political opinions culminating in him being detained and
tortured in August 1993. However, I have not found the
appellant to be a credible witness in that there are
substantial parts of his evidence which I do not accept.
His credibility is undermined by the confusion in his
evidence as to the chronology of events and, in particular
as to the obtaining of his passport.
...
It is clear that the appellant has been the victim of
serious ill-treatment. I have to consider whether there is
a reasonable degree of likelihood that these injuries were
incurred as a result of persecution...
...
I have not found the appellant's evidence to be credible
and I do not believe the account he has given of the
circumstances of his arrest. I do not believe that he has
been a political activist on behalf of the FPI nor that he
was arrested for the reason that he describes or at the
time he describes. However it is clear that the appellant
has been the victim of serious ill-treatment.
...
Although I accept that the appellant has been the victim of
ill-treatment in Ivory Coast, and in all likelihood for
this reason has decided to leave the country, I do not find
there is any serious possibility that he has been
persecuted for a Convention [1951 UN Refugee Convention]
reason or that he is at risk of such persecution were he to
return.
This appeal must be dismissed but doubtless the Secretary
of State will take careful note of the contents of the
report from the Medical Foundation before deciding what
further action will be appropriate."
By an application for leave to appeal dated 29 March 1996, the
applicant applied to the Immigration Appeal Tribunal for leave to
appeal against the dismissal of his asylum appeal by the Special
Adjudicator. By a determination dated 3 April 1996, the Immigration
Appeal Tribunal refused to grant leave to appeal. The applicant had
no further right of appeal. He was arrested and detained under the
1971 Act on 5 May 1996. Removal directions for the return of the
applicant to Côte d'Ivoire were originally set for 6 May 1996. They
were deferred, initially to give the applicant time to consider
judicial review proceedings and subsequently pending the outcome of the
present application.
On 8 May 1996 counsel advised in writing that there was no
arguable basis for a challenge to the determination of 3 April 1996,
because the Special Adjudicator had considered all the evidence and had
lawfully and rationally concluded that there was no evidence to suggest
there was any serious possibility that the applicant had been
persecuted for a Convention reason or that he would be at risk of such
persecution were he to be returned.
The applicant's representatives wrote to the Home Office on
8 May 1996, confirming that no application for judicial review would
be made. This letter, however, requested that the applicant be granted
exceptional leave to remain in the United Kingdom outside the
Immigration Rules because of the Special Adjudicator's acceptance that
the Applicant had sustained injuries amounting to serious ill-treatment
in Côte d'Ivoire.
According to an Amnesty International Report dated 28 May 1996,
subsequent to the one submitted by the applicant to the Special
Adjudicator, dozens of people were arrested in October 1995 as FPI
sympathisers. The report also details an increase in the number of
convictions of journalists and cites examples of journalists working
on "La Voie" being singled out for judicial harassment by the Ivorean
authorities, and imprisonment of journalists working for "La Patrie".
By a letter dated 17 July 1996 the Home Office replied to the
applicant's letter of 8 May that:
"Based on the totality of evidence he [the Secretary of State]
does not ... consider that there is any evidence to suggest that
[the applicant] would face persecution for a Convention [1951 UN
Refugee Convention] reason, were he returned to the Côte
d'Ivoire."
The Secretary of State added that when the applicant had been
arrested for fare evasion on 27 August 1994, he had admitted to an
Immigration Officer that he had not come to the United Kingdom
specifically to claim asylum.
This decision was confirmed in a letter of 25 July 1996, sent in
response to further letters from the applicant's representatives.
The applicant, who had been in custody awaiting removal, was
released from detention on 17 September 1996.
COMPLAINTS
The applicant complains under Articles 2 and 3 of the Convention
about his proposed removal from the United Kingdom. The applicant
further complains under Article 13 of the Convention that he had no
effective remedy as the English courts had no jurisdiction to establish
the existence of a risk of torture in a receiving state.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 June 1996 and registered on
5 September 1996.
On 7 September 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
28 November 1996 and further observations on 19 June 1997, after an
extension of the time-limit fixed for that purpose. The applicant
replied on 4 April 1997 and further on 17 September 1997, also after
an extension of the time-limit.
On 7 March 1997 the Commission granted the applicant legal aid.
THE LAW
1. The applicant complains that his removal from the United Kingdom
to Côte d'Ivoire would constitute a violation of Articles 2 and 3
(Art. 2, 3) of the Convention. The Commission finds that the
applicant's complaints should be considered under Article 3 (Art. 3)
of the Convention.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Government argue that the applicant has failed to exhaust his
domestic remedies. Judicial review proceedings were not pursued to
challenge the decision of the Immigration Appeal Tribunal's refusal of
leave to appeal, and no application was made for judicial review of the
refusal of the Secretary of State to accede to a request for
exceptional leave to remain in the United Kingdom. With regard to the
failure to challenge the refusal of leave to appeal by the Immigration
Appeal Tribunal, the Government accept that counsel had advised that
there was no arguable basis for such a challenge, but state that such
advice did not absolve the applicant from his duty to pursue such a
remedy. With regard to the Home Secretary's refusal to grant
exceptional leave to remain, the Government state that this decision
could have been judicially reviewed and they cite an example of a case
(R v. Secretary of State for Home Department ex parte Danaei) where the
Home Secretary's refusal to grant exceptional leave was challenged and
subsequently quashed. The Government rely upon the case of M v. United
Kingdom (No. 12268/86, Dec. 7.11.88, D.R. 57 p. 136).
The applicant submits that domestic remedies have been exhausted.
In relation to the failure to apply for judicial review of the refusal
of the Immigration Appeal Tribunal to grant leave to appeal, the
applicant states that counsel's opinion that there were no grounds for
judicial review was unequivocal and amounted to a settled legal
opinion. The opinion stated that the Special Adjudicator had made a
lawful decision based on views rationally open to him and that there
were thus no grounds for judicial review. The applicant argues that
judicial review was doomed to fail and thus there was no effective
remedy open to him. With regard to the failure to apply for judicial
review of the refusal of the Secretary of State to grant exceptional
leave, the applicant contends that judicial review was not an effective
remedy. The applicant states that there is no body of case law where
such challenges have been effective and that the case quoted by the
Government is an isolated case, which in any event differs from the
applicant's case on the facts; in the cited case the Home Secretary's
refusal of exceptional leave was quashed because, despite the absence
of additional evidence, the Home Secretary had relied on facts in
relation to the asylum seeker that differed from those found by the
Special Adjudicator. The applicant distinguishes the case of
M v. United Kingdom (No. 12268/86, Dec. 7.11.88, D.R. 57 p. 136), as
in that case the applicant, an asylum seeker who was found not to have
exhausted his domestic remedies, had not challenged three refusals of
asylum and one of exceptional leave and had submitted no evidence to
suggest that judicial review would be ineffective.
The Commission recalls that, in accordance with Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted. Article 26 (Art. 26) requires
exhaustion of remedies which relate to the breach alleged and which are
available and sufficient (see Eur. Court HR, Van Oosterwijck judgment
of 6 November 1986, Series A no. 40, p. 13, para. 27). In addition the
Commission has consistently held that the mere existence of doubts as
to the prospects of success does not absolve an applicant from
exhausting a given remedy (see Nos. 5577-5583/72, Dec. 15.12.75, D.R.
4 pp. 4, 72).
The Commission recalls that in the cases of Vilvarajah and Others
v. United Kingdom (Eur. Court HR, judgment of 30 October 1991, Series
A no. 215), the Court held that judicial review was an effective remedy
which provides a control of decisions of the administrative authorities
in asylum cases. However, it is recognised in the Vilvarajah case that
there are limitations to the powers of the courts in judicial review
proceedings. In the current case counsel was of the view that the
Special Adjudicator's finding could not be considered either unlawful
on technical or procedural grounds or irrational. As regards the
failure to apply for judicial review of the Secretary of State's
refusal to allow the applicant permission to stay in the country, the
Commission notes that the applicant has not submitted any
contemporaneous advice from counsel which concluded that such an
application was bound to fail. On the other hand, the request for
permission to remain was a request for an exercise of discretion on the
part of the Secretary of State, and may therefore be assimilable to an
extraordinary remedy which the applicant was in any event not required
to exhaust.
In the circumstances of the present case, the Commission is not
required to determine whether the applicant has complied with the
requirements of Article 26 (Art. 26) of the Convention as the
application is in any event inadmissible for the following reasons.
The Government argue that the applicant has failed to show
substantial grounds that there is real risk that he will be subjected
to torture or inhuman or degrading treatment or punishment, were he to
return to Côte d'Ivoire. They do not accept that the applicant has
ever been a FPI supporter and contend that the reports published by
Amnesty International, in particular the report dated 28 May 1996
concerning the situation in Côte d'Ivoire, give a misleading,
inaccurate and outdated account of the true situation. The Government
have placed before the Commission UNHCR Country Information dated
3 February 1997 which is based on information from the US Department
of State Office of Asylum Affairs and Country Conditions 1995/96. This
report details an improvement of the situation in Côte d'Ivoire, noting
the Government's apparent acceptance of the presence of the opposition
and commenting that:
"In our view, affiliation with the FPI ... would not by itself
expose a person to danger upon returning to Côte d'Ivoire."
The applicant states that the Special Adjudicator accepted that
he had been the victim of serious ill-treatment and that such past
treatment of itself raises substantial grounds for believing there to
be a real risk of similar treatment upon return.
The Commission recalls that in the case of Soering v. United
Kingdom (Eur. Court HR, judgment of 7 July 1989, Series A no. 161,
p. 35, para. 91), the Court held that for there to be an issue under
Article 3 (Art. 3) of the Convention, there must be substantial grounds
for believing that the person concerned faces a real risk of being
subjected to torture or to inhuman or degrading treatment or
punishment. In deciding whether there are substantial grounds for such
a belief, the Commission will consider all the material before it (see
the above mentioned Vilvarajah judgment at p. 36, para. 107). In the
present case the Commission has considered and accepted the report of
Amnesty International dated 28 May 1996 as an accurate summary of the
situation in Côte d'Ivoire at the date of that report, but considers
that such report must now be read in the light of the more recent UNHCR
report of 3 February 1997. The Commission notes the medical report
concerning the applicant's injuries and the finding of the Special
Adjudicator, following the view of the medical doctor, that the
applicant had been the victim of serious ill-treatment.
However, the Commission considers that there is no sufficient
evidence before it to substantiate the applicant's involvement with the
FPI or to establish that any detention was due to his political
activities. In the absence of such evidence the Commission does not
consider that the applicant has shown there to be substantial grounds
for believing that were he to return to Côte d'Ivoire he would face a
real risk of being subjected to torture, inhuman or degrading treatment
or punishment, whether on political or other grounds. The fact that
the applicant's injuries indicate he had received ill-treatment in the
past is insufficient to ground a finding of a potential breach under
Article 3 (Art. 3) of the Convention, in the absence of evidence of a
real risk to him if returned now.
In these circumstances the Commission finds that substantial
grounds have not been established for believing that the applicant
would be exposed to a real risk of being subjected to inhuman or
degrading treatment, within the meaning of Article 3 (Art. 3) of the
Convention, were he to return to Côte d'Ivoire.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 13 (Art. 13) of the
Convention that he had no effective remedy.
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. United Kingdom judgment of 21
February 1990, Series A no. 172, p. 14, para. 31). In the present
case, the Commission has rejected the substantive claims as disclosing
no appearance of a violation of the Convention. For similar reasons,
they cannot be regarded as "arguable".
It follows that this part of 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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy