AS TO THE ADMISSIBILITY OF
Application No. 13292/87
by S.T.N.
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 November 1987, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 15 October 1987
together with a request to apply Rule 36 of the Commission's Rules of
Procedure by S.T.N. against the Netherlands and registered on the same
day under file N° 13292/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the decision of the Commission on
16 October 1987 to invite the parties to submit further information
on the application;
Having regard to the information submitted by the Government
on 2 and 3 November 1987 and to the applicant's reply received on
10 November 1987;
Having regard to the decision of the President on
5 November 1987 not to apply Rule 36 of the Rules of Procedure;
Having regard to the renewed request for application of
Rule 36 and the decision of the Commission on 10 November 1987 not
to apply Rule 36;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant is a Togolese citizen, born in 1959 and a
student. He is at present living unlawfully in the Netherlands
and represented in the proceedings before the Commission by
Mr. W.A. Venema, a lawyer practising in Rotterdam.
The applicant entered the Netherlands on 26 January 1987.
On 9 February 1987, the applicant introduced a request for political
asylum and a request for a temporary residence permit with the police
in Rotterdam. He is under an obligation to report weekly to the
police.
The applicant was interviewed on 8 July 1987 by a civil
servant (contactambtenaar) of the Ministry of Justice. The applicant
declared that he had escaped from arrest in Togo on 5 October 1986, after
an attempt to overthrow the Government had failed on 23 September 1986.
The authorities were looking for him because his brother Mohammed
Souley Sebini was among the people arrested for having been involved
in this attempted coup. The applicant himself denied having been
involved in the coup, although his brother asked him to participate.
He stated that, whilst waiting for his former nanny to collect travel
money for him, he was informed that his brother had been killed on
government order. The applicant lived in hiding in a distant village
in Togo until 20 January 1987, when he entered Benin on foot. He
subsequently left Benin by plane on 23 January 1987 and travelled via
Lagos (Nigeria) to Paris (France) where he arrived the next day. A
compassionate and unidentified Senegalese paid for his train ticket to
the Netherlands. Two days later, on 26 January 1987, he arrived by
train in Rotterdam where he reported to a refugee centre. He cannot
recall the name of the airline, the colour of the aircraft, the name
and address of the Senegalese where he had stayed in Paris and other
such details. He considered that France and Nigeria have been
involved in the attempted coup and that Benin cannot be regarded as a
democratic country. For these reasons he did not request asylum in
those countries.
The Deputy Minister of Justice (Staatssecretaris van
Justitie) rejected his requests on 9 July 1987. With regard to the
request for asylum, the Deputy Minister observed that the applicant,
who had lived in Togo from the date of his alleged escape from arrest
until 20 January 1987, had failed to show that he would be liable to
persecution in Togo in the sense of the 1951 Geneva Convention on the
Status of Refugees. She observed, furthermore, that the applicant had
stayed in Benin and France before entering the Netherlands and that,
consequently, the Netherlands could not be regarded as the first
receiving country. After having decided that the applicant could not
receive asylum in the Netherlands, the Deputy Minister found no reason
of general interest for granting the request for a temporary residence
permit.
Against this decision the applicant has introduced a request
for review which has not yet been determined.
The applicant, who sought a suspension of a potential
deportation pending the review procedure, seized the President of the
Regional Court (Arrondissementsrechtsbank) of Rotterdam in injunction
proceedings (kort geding). This request was rejected on 13 October 1987.
The President considered that the review could not reasonably be
expected to be granted, given the inconsistent and implausible escape
story of the applicant. An appeal against this decision before the
Court of Appeal (Gerechtshof) is pending.
The applicant failed to comply with his duty to report to the
police after the injunction proceedings and is now in hiding.
COMPLAINTS
1. The applicant, invoking Article 3 of the Convention, fears
that he will be subjected to treatment contrary to this provision
since the Togolese authorities appear to accuse him of having been
closely associated with the attempt to overthrow the Government, as
a result of which his brother was arrested and later killed. He
complains that expulsion to a country that will punish him according
to a procedure contrary to Articles 3 and 6 of the Convention amounts
itself to a violation of Article 3 of the Convention.
2. The applicant submits that the deportation in itself would
amount to a violation of Article 3, given his poor health and the
necessity of treatment which is unavailable to him in Togo.
&_PROCEEDINGS BEFORE THE COMMISSION&S
The application was introduced and registered on
15 October 1987, together with a request for application of Rule 36
of the Commission's Rules of Procedure, in order to postpone the
applicant's deportation to Togo.
On 16 October 1987, after a preliminary examination of the
admissibility of the application, the Commission decided to adjourn
its decision on the Rule 36 request and instructed the Secretary to
request the parties to submit further information in accordance with
Rule 42 para. 2 (a) of its Rules of Procedure.
The information submitted by the applicant reached the
Commission's Secretariat on 20 October 1987 and was subsequently
transmitted to the Government for reply.
The information submitted by the Netherlands Government
reached the Commission's Secretariat on 5 November 1987 and was
transmitted to the applicant for his reply.
On the same day, the President of the Commission decided not
to apply Rule 36 of the Rules of Procedure.
The applicant's reply was received on 10 November 1987,
together with a renewed request to apply Rule 36.
On 10 November 1987, the Commission considered the new request
and decided not to apply Rule 36.
SUBMISSIONS OF THE PARTIES
A. The Government
The Netherlands Government intend to expel the applicant to
Togo after concluding from the hearing held on 8 July 1987 that he is
not a refugee under the provision of the 1951 Geneva Convention. The
deportation will take place as soon as the applicant has been located.
The Representative of the United Nations High Commissioner for
Refugees in the Netherlands was consulted. On 27 October 1987, the
Representative decided on the facts before him, and after consultation
with the main office in Geneva, that the applicant cannot be regarded
as a refugee under the 1951 Geneva Convention. The terms of this
decision were also communicated to the applicant's representative.
B. The applicant
The applicant contends that, if deported, he is likely to be
severely punished according to a procedure contrary to Articles 3 and 6
of the Convention. He fears for his life, given the fact that his
brother died in prison.
He submits as further proof a Togolese newspaper clipping in
the Ewe language, apparently giving twenty names of people involved in
the coup. Among these names appears the name of Souley Mohamed
Sebini.
He asserts that neither France nor Benin can be regarded as
first receiving country, given the fact that he only stayed in these
countries for the time necessary to organise his passage. Moreover,
the French and Benin authorities could not protect him against
expulsion to Togo. The attempted coup led to a nine-day intervention
by French troops in response to a request from the Togolese President
General Eyadema. Benin is bound by a security agreement concluded
with Ghana, Nigeria and Togo to give mutual access to its territory to
police authorities of another country, while the extradition treaty
between Togo and Benin can be abused to cover refugees.
In reply to the Government's information, and in particular
the position taken by the UNHCR Representative, the applicant submits
that, in the Togolese situation, it is conceivable that family members
can be persecuted for political activities of another family member.
The applicant refers to the 1987 Report of Amnesty International
(A.I.) and to a special A.I. report, 'Togo: Political
Imprisonment and Torture'. In these reports, A.I. expressed its
concern about the imprisonment of prisoners of conscience, and the
detention without trial of other suspected opponents of the
Government. The reports describe cases of torture and ill-treatment
of detainees, involving in fact cases of brothers and sisters. The
reports also state that 35 people were charged after the attempted
coup. Thirteen people were sentenced to death.
The applicant further submits that he suffers from
schistosomiasis (a disease which affects the intestines), for which
he alleges that he could not receive adequate treatment in Togo. He
introduces a letter of his physician, stating that further observation
on the progress of the disease and its treatment should take place in
the Netherlands and not in Togo as the illness can be fatal.
THE LAW
1. The applicant complains that his expulsion to Togo would
amount to treatment contrary to Article 3 (Art. 3) of the Convention
since, if expelled, he would probably be subjected to political
persecution and risk death either by sentence or ill-treatment in
prison.
2. The Commission observes that the proceedings pending in the
Netherlands, in their present state, do not suspend the execution of
the decision to expel the applicant. According to the Commission's
constant case-law, such remedies are not effective remedies within the
meaning of Article 26 (Art. 26) of the Convention and need not be exhausted,
where the allegation is that of a breach of Article 3 (Art. 3) of the
Convention in view of possible ill-treatment in the receiving country
(No. 7216/75, Dec. 20.5.76, D.R. 5 pp. 137, 142; No. 10760/84,
Dec. 17.5.84, D.R. 38 p. 224).
3. The Commission recalls that the right to asylum and the right
not to be expelled or extradited are not as such included among the
rights and freedoms mentioned in the Convention (No. 7256/75,
Dec. 10.12.76, D.R. 8 p. 161; No. 7465/76, Dec. 29.9.76, D.R. 7
p. 153).
However, the expulsion or extradition of a person may, under
certain exceptional circumstances, raise an issue under Article 3
(Art. 3) where there is a serious reason to believe that he or she will be
subjected to treatment prohibited by that provision in the receiving
country. The Commission refers in this respect to its constant
case-law (cf. No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48; No. 10479/84,
Kirkwood v. the United Kingdom, Dec. 12.2.84, D.R. 37 p. 158;
No. 10760/84, 17.5.84, D.R. 38 p. 224).
4. The applicant submits that, in the event of expulsion, he
might be tried under a procedure which does not comply with the
guarantees laid down in Article 6 (Art. 6) of the Convention.
The Commission does not consider it necessary to examine this
allegation. Even if it were well-founded, it would not in itself make
expulsion appear as inhuman treatment (No. 10308/83, Altun v. Federal
Republic of Germany, Dec. 3.5.83, D.R. 36 pp. 209, 232).
5. However, the risk of political persecution as such may raise
an issue under Article 3 (Art. 3) if it could lead to an arbitrary
sentence or inhuman detention conditions (No. 9012/80, Dec. 9.12.80,
D.R. 24 pp. 205, 219; No. 10308/83, Dec. 3.5.83, Altun v. Federal
Republic of Germany, D.R. 36 pp. 209, 233; No. 10760/84, Dec. 17.5.84,
D.R. 38 p. 224). In the present case the Commission finds no
appearance of such a violation.
The Commission notes that in the asylum proceedings in the
Netherlands it was found, after investigation of the applicant's
submissions, that he does not meet with the requirements to be granted
refugee status under the 1951 Geneva Convention, and that administrative
decision has been considered by civil courts pending the review
proceedings.
The Commission further notes that the Representative of
the United Nations High Commissioner for Refugees in the Netherlands
has examined the case and found no reason to avail himself of his
right to intervene in the proceedings in the Netherlands, since the
applicant could, in his opinion, not be granted refugee status under
the 1951 Geneva Convention.
Under its independent duty under the Convention to assess
itself the existence of an objective danger, the Commission notes that
the applicant declared that he had never been implicated in the
attempted coup. The applicant has never before been in conflict with
the Togolese authorities, neither for political nor for criminal
activities, and he does not submit any evidence showing that he is
likely to be persecuted in Togo.
6. Having considered all the elements of the file, the Commission
finds that the applicant has failed to substantiate his allegation
that he would risk inhuman treatment if he returned to Togo.
7. The Commission concludes that an examination of the
application in this respect does not disclose any appearance of a
violation of Article 3 (Art. 3) of the Convention.
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.
8. The applicant further submits that, due to his virulent
illness, deportation itself would be tantamount to a violation of
Article 3 (Art. 3) of the Convention.
The Commission notes that the illness and its alleged
seriousness are maintained in a statement of the applicant's private
physician and has been submitted to the Commission only on
9 November 1987, where it was received the following day, as a reply
to the information given by the Government. The Commission notes that
the applicant is unwilling to have himself examined by the Netherlands
authorities for fear of deportation.
The applicant now bases his application on a completely
different reason which he has not yet submitted as an argument in
the domestic proceedings. The Commission considers that this new
allegation should be examined as a separate matter.
The Commission notes that, if the allegation is true, the
applicant could invoke Article 25 (Art. 25) of the Aliens Act
(Vreemdelingenwet) before the domestic authorities, according to which
deportation of an alien from the Netherlands should not take place if
his state of health does not permit such deportation. The Commission
therefore concludes that the applicant has not exhausted the domestic
remedies available to him in the Netherlands. Having rejected the
first section of this application as being manifestly ill-founded, the
Commission finds there are no special circumstances which could
absolve the applicant from presenting himself to the authorities for a
medical examination and from taking proper proceedings in the
Netherlands on the basis of the results of such an examination.
9. It follows that the application must, in this respect, be
rejected under Article 27 para. 3 (Art. 27-3) 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)