AS TO THE ADMISSIBILITY OF
Application No. 21350/93
by Teteh Ankrah SOMADO
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 13 October 1993, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 October 1992 by
Teteh Ankrah SOMADO against the Netherlands and registered on
9 February 1993 under file No. 21350/93 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Togolese national, born in 1963 and currently
in hiding in the Netherlands. Before the Commission he is represented
by J.Th.A. Bos, a lawyer practising in Utrecht, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant's father, who was the village chief of Z., died in
1984 allegedly as a result of a curse ("juju"). The applicant's elder
brother inherited the function of village chief. Since he wished to
finish his studies, an uncle of the applicant became interim village
chief. When in 1985 the applicant's brother claimed his right to become
village chief, he allegedly received several death threats from his
uncle and his followers and in 1986 left Togo. At present he is
residing in Japan, where he has obtained the status of refugee. Since
his brother's departure the applicant was the lawful heir to his
father's position. As from 1989 the applicant has allegedly been
pressed on several occasions by the village elders to claim his right
to become village chief and threatened by his uncle if he would do so.
The applicant consistently refused to become village chief and in 1990,
holding a valid passport issued in April 1989, he left Togo.
On 24 December 1990 the applicant arrived in Brussels, Belgium,
and on 25 December 1990 he travelled to the Netherlands, where on 27
December 1990 he requested the status of refugee and a residence
permit.
On 23 April 1992 the applicant was heard by a contact officer of
the Ministry of Justice (contactambtenaar van het Ministerie van
Justitie). By decision of 12 May 1992 the Deputy Minister of Justice
(Staatssecretaris van Justitie) rejected the applicant's requests,
considering the applicant did not meet the requirements for obtaining
the status of refugee and that no circumstances had appeared on the
basis of which the applicant could qualify for a residence permit on
humanitarian grounds.
By letter of 1 July 1992 the applicant's lawyer requested the
Deputy Minister of Justice to review (herziening) the decision of 12
May 1992. On 22 July 1992 the applicant was informed that the request
for a review was denied suspensive effect in respect of his expulsion
from the Netherlands. The review proceedings are still pending.
The applicant's request for a stay of his expulsion was refused
on 24 September 1992 by the President of the Regional Court
(Arrondissementsrechtbank) of The Hague in injunction proceedings (kort
geding). The President considered that there was no reasonable doubt
that the applicant did not meet the requirements for the status of
refugee. Although the President did not doubt the applicant's
allegations, he considered that there were no compelling humanitarian
reasons opposing the applicant's expulsion having regard to the fact
that the applicant never had expressed the intention to become village
chief and that it was not impossible to remain outside the village
elders' sphere of influence. The applicant's appeal against this
decision is still pending.
By letter of 12 March 1993 the applicant's lawyer requested the
Dutch authorities to stay the applicant's expulsion in view of the
current unstable political situation in Togo. In this letter the
applicant's representative referred to a decision of 15 January 1993
in injunction proceedings in a similar case where the President of the
Regional Court had decided to adjourn his decision pending the
submission by the Dutch authorities of additional information, from
which it should appear that no violation of Article 3 of the Convention
would occur if that person would be expelled to Togo.
COMPLAINT
The applicant complains that the Netherlands authorities by
expelling him to Togo expose him to a treatment contrary to Article 3
of the Convention.
THE LAW
The applicant complains that his expulsion to Togo will expose
him to a treatment contrary to Article 3 (Art. 3) of the Convention.
The Commission does not find it necessary to examine whether the
applicant has complied with the requirements of Article 26 (Art. 26)
of the Convention, as the application is in any event manifestly ill-
founded for the following reasons.
The Commission recalls its constant case-law according to which
no right of an alien to enter or to reside in a particular country, nor
a right not to be expelled from a particular country is as such
guaranteed by the Convention (cf. No. 7816/77, Dec. 19.5.77, D.R. 9 p.
219). However, the expulsion of a person to a country where there are
reasons to believe he will be subjected to a treatment contrary to
Article 3 (Art. 3) of the Convention may raise an issue under that
Article. This may be so even if the danger does not emanate from public
authorities for whom the receiving State is responsible (No. 12461/86,
Dec. 10.12.86, D.R. 51 p. 258).
The Commission notes that the current political situation in Togo
may be regarded as unstable. However, in respect of the general
situation in Togo, the applicant has not substantiated in which respect
his personal situation is any worse than that of the generality of the
Togolese population (cf. mutatis mutandis, Eur. Court H.R. Vilvarajah
and Others judgment of 30 October 1991, Series A no 215, p. 37, para.
111). Concerning his personal situation in respect of the pressure
exercised by his uncle and the village elders, the Commission recalls
that to fall within the scope of Article 3 (Art. 3) of the Convention,
ill-treatment must attain a minimum level of severity (cf. No.
10142/82, Dec, 8.7.85, D.R. 42 p. 86). Noting that the applicant does
not allege that, when expelled, he will be compelled to take up
residence in his village, the Commission finds that the mere
possibility of being exposed in his village to a certain degree of
pressure by either his uncle or the village elders is, in the
circumstances of the present case, not in itself sufficient to raise
an issue under Article 3 (Art. 3) of the Convention.
It follows 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy