AS TO THE ADMISSIBILITY OF
Application No. 16400/90
by H.S. and H.Y.
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 2 April 1990
by H.S. and H.Y. against the Netherlands and registered on 4 April
1990 under file No. 16400/90;
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 applicants are Lebanese citizens, born in 1965 and 1968,
respectively. They are at present detained in the special detention
centre at Schiphol Airport, Amsterdam, the Netherlands. In the
procedure before the Commission they are represented by Mr. Th.
Spijkerboer, a lawyer practising in Zaandam.
1. The first applicant left Beirut on 10 February 1990 and flew
to Cyprus. The next day he flew to Amsterdam via Vienna, Austria. In
Amsterdam he immediately requested asylum.
On 21 February 1990 he was interviewed by an official from the
Ministry of Justice. As reasons for his asylum request he stated,
inter alia, that the war and the generally dangerous situation were
causing problems for him, in particular in his trade in gas-tanks. He
denied ever having been a member of a political party or militia and
stated that he had never taken part in the conflict and did not wish
to seek protection by joining one or another group. On his departure,
he had paid security guards at Beirut airport 150 US dollars to leave
him alone.
On 22 February 1990, the Deputy Minister of Justice rejected
the first applicant's asylum request and also refused to grant him a
residence permit.
The first applicant's request of 5 March 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 Haarlem 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 lived in an Amal-militia controlled
area, and that he has been active for them in a minor fashion. He has
done guard-duty and occasionally participated in the fighting. His
brother is a high-ranking Amal official who has had to flee Beirut in
1988, following an interrogation by Syrian Security Police. The first
applicant himself has been detained by the Syrians and has been
arrested and ill-treated by Hezbollah-militia people. On the last
such occasion, just before he went to the Netherlands, he recognised
several ex-Amal people among his interrogators and he now fears he is
presumed to be active for Amal. He submitted that his deportation to
Lebanon would be contrary to Article 3 of the Convention.
On 6 April 1990, the President of the Regional Court rejected
the first applicant's injunction request. The President stated, inter
alia, that the first applicant has relied on the general situation in
Lebanon to support his asylum request, but that his personal situation
is much the same as that of many young Lebanese. Nor can the first
applicant's desire not to participate in the conflict be equated to a
political standpoint which would attract persecution. As to Article 3
of the Convention, the President stated that the individual
circumstances of the first 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.
2. The second applicant also left Beirut on 10 February 1990, and
flew via Cyprus and Austria to Amsterdam, where he requested political
asylum.
On 21 February 1990 he was interviewed by an official from the
Ministry of Justice. As reasons for his asylum request he stated,
inter alia, that he was fleeing the war situation and the lack of
freedom in which he lived. He lived in a Hezbollah-militia controlled
area and had to conform to their opinions and was subjected to
pressure to join. He denied ever having been a member of a political
party or militia, and stated that he had never taken part in the
conflict. He had never personally suffered any particular
difficulties due to the conflict, other than that his employer had had
to close his business recently due to militias forcing him to take on
unpaid work, thereby leaving the second applicant without an income.
On his departure, he had refused to pay Beirut airport security guards
money which they requested to leave him alone, but he was nevertheless
not hindered by them.
On 22 February 1990, the Deputy Minister of Justice rejected
the second applicant's asylum request and also refused to grant him a
residence permit.
The second applicant's request of 5 March 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 of Haarlem 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 his entire family has been under pressure
from Hezbollah since late 1988 when his father was shot in the legs
because he was suspected of being an informer for General Aoun of
Amal. The second applicant fled, first to another district of Beirut,
and later to the south of Lebanon. There he also had to move from
place to place, and he attracted the attention of the South Lebanese
Army, which wished him to join them. He returned to Beirut in late
1989. He stated that he could not safely go to any part of the
country. He submitted that his deportation to Lebanon would be
contrary to Article 3 of the Convention.
On 6 April 1990, the President of the Regional Court rejected
the second applicant's injunction request. The President stated,
inter alia, that the second applicant has relied on the general
situation in Lebanon to support his asylum request, but that his
personal situation is much the same as that of many young Lebanese.
Nor can the second applicant's desire not to participate in the
conflict be equated to a political standpoint which would attract
persecution. As to Article 3 of the Convention, the President stated
that the individual circumstances of the second 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 applicants complain that if deported to Lebanon they face
a real risk of suffering treatment contrary to Article 3 of the
Convention by:
a. becoming the victims 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 applicants submit that what is of primary
importance in assessing this risk is what happened to them in Lebanon,
and not what they told the officials of the Ministry of Justice when
interviewed on their asylum request. In this respect, the applicants
point out that at these interviews they do not have recourse to legal
assistance, their statements are first interpreted into Dutch and then
into a written form, and there is no way of subsequently checking what
they did or did not say as there is no audio recording of the
interview.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 April 1990 and registered
on 4 April 1990.
On 5 April 1990, the Commission decided, under Rule 36 of its
Rules of Procedure, to indicate to the respondent Government that it
was desirable in the interest of the parties and the proper conduct of
the proceedings before the Commission not to deport the applicants to
Lebanon until the Commission had had an opportunity to examine the
application. The parties were also invited to submit further relevant
factual information before 4 May 1990.
On 2, 6 and 17 April 1990 the applicants submitted further
documents in support of the application.
THE LAW
The applicants complain that if deported to Lebanon they face
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 innocent bystanders or through being coerced into
participating in the fighting. They invoke 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 applicants'
original statements to officials of the Ministry of Justice referred
to the general situation in Lebanon. Subsequent to the refusal of
asylum, they revised their stories to include specific details of
personal and family difficulties caused by militias or the war situation.
In their appeals in summary proceedings the applicants 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 applicants 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 their own
statements, the applicants have only to a minor degree been involved
in political activities in Lebanon. The first applicant has allegedly
been active for Amal in a minor fashion while the second has not been
active at all but only refers to vague pressures from certain groups.
Their situation would not appear to be different from that of large
numbers of Lebanese.
In these circumstances the Commission considers that the
grounds which the applicants present in support of their complaint are
not sufficient to substantiate the conclusion that they face 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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