AS TO THE ADMISSIBILITY OF
Application No. 16454/90
by S.S.
against the Netherlands
The European Commission of Human Rights sitting in private
on 10 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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 18 April 1990
by S.S. against the Netherlands and registered on 18 April 1990 under
file No. 16454/90;
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 Lebanese citizen born in 1962. He is at
present residing in Hoogezand, the Netherlands. In the procedure
before the Commission he is represented by Mr. Th. Spijkerboer, a
lawyer practising in Zaandam.
The applicant left Beirut, Lebanon on 11 November 1989 by
taxi. He arrived in Damascus, Syria, where he boarded an airplane
bound for Amman, Jordan. Via Rome, Italy, he arrived in Amsterdam,
on 12 November 1989. In Amsterdam he immediately requested asylum.
On 16 November 1989 he was interviewed by an official from the
Ministry of Justice. As reasons for his asylum request he stated,
inter alia, that he feared being caught by the Hezbollah-militia
because he had fought against them in 1983 in Tripoli, Lebanon. He
stated that he had joined the Baath party in 1982 in order to get
work. He was trained as a militia-man and participated in the
fighting until he fled to Beirut in 1983. In the last fight in which
he was involved he had been grazed by a bullet above his eye, and in a
subsequent road accident in the ambulance, he lost two fingers and
suffered damage to his ribs. In 1983 his father was killed in a
bomb-attack on his shop by the Tawheed-militia who were apparently
looking for the applicant. In 1984 he began to work as a chauffeur
for a wealthy Christian family. This family fled Beirut in 1989,
leaving the applicant with no work. He has not had contact with
militias since 1983.
On 14 December 1989, the Deputy Minister of Justice rejected
the applicant's asylum request and also refused to grant him a
residence permit.
The applicant's request of 6 February 1990 for a review of
this decision was apparently denied suspensive effect for his
deportation. He, therefore, with the assistance of counsel,
instituted summary proceedings (kort geding) with the President of the
Regional Court (Arrondissementsrechtbank) of 's-Hertogenbasch
demanding the right to remain in the Netherlands pending his appeals
on his asylum request.
In his request for review and in his summary proceedings he
stated, inter alia, that he had been arrested and detained by
Hezbollah in 1983 for several months. He submitted that his
deportation to Lebanon would be contrary to Article 3 of the
Convention.
On 18 April 1990, the President of the Regional Court rejected
the injunction request. The President stated, inter alia, that he
doubted the veracity of the alleged detention. Furthermore, the
applicant's alleged activities for a militia dated from 1983 and there
was no indication why he should fear persecution now, where in the
intervening 6 years he had no difficulties. As to Article 3 of the
Convention, the President stated that the individual circumstances of
the applicant's case could not lead to the conclusion that he faced a
"real risk" of treatment contrary to this Article if returned to
Lebanon.
COMPLAINTS
The applicant complains that if deported to Lebanon he faces
a real risk of suffering treatment contrary to Article 3 of the
Convention by:
a. becoming the victim of random violence;
b. being forced to participate in the fighting;
c. being subjected to reprisals for trying to avoid induction
into a militia;
d. being subjected to ill-treatment at the hands of rival
militias.
Furthermore, the applicant submits that what is of primary
importance in assessing this risk is what happened to him in Lebanon,
and not what he told the officials of the Ministry of Justice when
interviewed on his asylum request. In this respect, the applicant
points out that at these interviews he does not have recourse to legal
assistance, his statements are first interpreted into Dutch and then
into a written form, and there is no way of subsequently checking what
he did or did not say as there is no audio recording of the
interview.
THE LAW
The applicant complains that if deported to Lebanon he faces
a real risk of suffering inhuman or degrading treatment at the hands
of militias or in the course of the general civil war situation,
either as an innocent bystander or through being coerced into
participating in the fighting. 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 the applicant's
original statements to officials of the Ministry of Justice referred
to the general situation in Lebanon. Subsequent to the refusal of
asylum, he revised his story to include specific details of
personal and family difficulties caused by militias or the war situation.
In his appeal in summary proceedings the applicant also
relied on Article 3 (Art. 3) of the Convention. The Commission notes
that the President of the Regional Court examined this argument,
also in the light of the aforementioned Soering judgment, and
considered that it could not be concluded that there was a "real risk"
of the applicant being exposed to treatment referred to in Article 3
(Art. 3) of the Convention, if returned to Lebanon.
Furthermore, the Commission notes that, according to his own
statements, the applicant has not been involved in the conflict in
Lebanon since 1983. He has had no problems in the subsequent six
years, and apparently left after his employer left Lebanon.
In these circumstances the Commission considers that the
grounds which the applicant presents in support of his complaint are
not sufficient to substantiate he 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 Lebanon.
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
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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