AS TO THE ADMISSIBILITY OF
Application No. 15607/89
by Selahattin OZBERK
against the United Kingdom
The European Commission of Human Rights sitting in private
on 15 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 12 October 1989
by Selahattin OZBERK against the United Kingdom and registered
on 12 October 1989 under file No. 15607/89;
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 Turkish citizen, born in 1959. He is a
printer by profession. He resides, at present, in Rome. He is
represented in the proceedings before the Commission by
Mr. Michael Hanley, of Miller Wilson, Solicitors, London.
The applicant arrived at Heathrow airport in London on
31 May 1989 and applied for political asylum, pursuant to the
Convention Relating to the Status of Refugees (1951). He was
immediately detained under the provisions of the Immigration Act 1971,
first at Harmondsworth Detention Centre and then HM Prison Winchester,
following his participation in a hunger strike. He was served with a
notice refusing his application for asylum on 27 June 1989.
The applicant is of Kurdish ethnic origins and Alevi by
religion. He is a sympathiser of Devrimci Halkan Birligi (DHB), an
illegal and non-violent Kurdish political movement. He claims that
his brother was arrested and tortured by the Turkish police in 1980.
His brother was subsequently sentenced to eight years' imprisonment
for membership of the DHB. On being released on bail by the Supreme
Court in Ankara, he went into hiding. As a result of his brother's
disappearance, the applicant states that the authorities concentrated
their attentions on the family home with the result that the applicant
and another brother went into hiding to avoid interrogation. The
applicant was later arrested on 10 April 1989 in Adana and claims that
he was taken to a police station and beaten with truncheons, slapped
and kicked and interrogated about the whereabouts of his brother.
He has submitted a medical report which concludes that the
applicant's psychological state is consistent with his allegations of
maltreatment.
Following an application for judicial review of the refusal of
asylum, the Home Office undertook to review and re-consider the
applicant's case. He was then interviewed by an immigration officer
with the assistance of an interpreter and served with a "Minded to
Refuse" Notice. This Notice sets out the preliminary rejection of his
asylum application.
On 14 August 1989 the Home Office finally refused the
application for asylum. An application for leave to move for judicial
review of this decision was rejected by the High Court on 18 August 1989.
On 11 October 1989 the London representative of the United
Nations High Commissioner for Refugees (UNHCR) informed the Home
Office that in their view the applicant's fear of persecution was well
founded and that he qualified as a refugee under the 1951 Convention.
Amnesty International wrote to the Home Office on 11 October 1989
expressing the same opinion.
A third application for leave to move for judicial review of
the refusal of asylum was rejected by the High Court on 12 October
1989. Removal directions, originally set for 12 October 1989, were
deferred less than an hour before the departure time on a request by
the UNHCR for an opportunity to find a safe third country for the
applicant. The applicant then remained in detention at Pentonville
Prison until 26 October 1989 when he was flown to Italy under the
auspices of the UNHCR. He was eventually allowed to enter Italy on
31 October 1989 and is currently maintained in Rome by the UNHCR.
COMPLAINTS
The applicant complains that his removal from the United
Kingdom constitutes a breach of Articles 3 and 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 October 1989 and
registered on the same day. The Commission first examined the
application on 12 October 1989 and rejected an application that the
respondent Government be requested under Rule 36 of the Rules of
Procedure not to deport the applicant from the United Kingdom.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention of his removal from the United Kingdom.
The Commission first recalls that according to its established
case-law the right to asylum and freedom from expulsion are not as
such included among the rights and freedoms mentioned in the
Convention but that the expulsion of a person may nevertheless, in
certain exceptional circumstances, raise an issue under the Convention
and in particular under Article 3 (Art. 3) where substantial grounds
have been shown for believing that the person concerned would be
subjected, in the State to which he is to be sent, to treatment which
is in violation of this Article (see No. 10564/83, Dec. 10.12.84, D.R.
40 pp. 262, 265 ; Eur. Court H.R., Soering judgment of 7 July 1989,
Series A no. 161, para. 91).
In the present case, however, the Commission notes that the
respondent Government deferred the applicant's removal to Turkey at
the request of the UNHCR until a third country could be found which
was willing to admit him. He was then removed to Italy, where he is,
at present, maintained by the UNHCR. In these circumstances no issue
can arise under Article 3 (Art. 3) of the Convention.
It follows that the applicant's complaint under this provision
must be rejected as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant further complains under Article 13 (Art. 13) of the
Convention that there exists under United Kingdom law no effective
remedy in respect of his above complaint.
The Commission recalls that an issue can only arise under this
provision in respect of an "arguable" claim that there has been a
breach of one of the provisions of the Convention (see Eur. Court
H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.
39, para. 71). The Commission notes that no issue under Article 3
(Art. 3) of the Convention arises in the present case since the
applicant was eventually removed to Italy where he lives at present.
The applicant's complaint under this provision does not therefore give
rise to an "arguable" claim for purposes of Article 13 (Art. 13). It
follows that this complaint 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
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
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