AS TO THE ADMISSIBILITY OF
Application No. 16558/90
by S.Y.
against the Netherlands
The European Commission of Human Rights sitting in private
on 18 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy 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 23 April 1990
by S.Y. against the Netherlands and registered on 3 May 1990 under
file No. 16558/90;
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 Turkish national, born in 1950, and
presently residing in Rotterdam, the Netherlands. He is a chemical
engineer and majority shareholder in several mining and trading
companies based in Turkey. Before the Commission he is represented by
Mr. J. Groen, a lawyer practising in The Hague.
The facts as submitted by the applicant may be summarised as
follows.
Since the age of 16, the applicant has been politically active
in Turkey. As a student, he was a member of "Dev Genç", a left-wing
youth organisation, and was arrested in 1971. Since 1974 he has been
a member of the marxist-leninist faction of the Turkish communist
party (TKP/ML) and has actively assisted in organisational and
propaganda tasks for the party as well as since 1983 providing jobs in
his mines for political friends who have been in prison. He was a
member of the central bureau of the party and functioned under a
code-name. He alleges that he refrained from public political
activities out of fear of reprisals against his two children.
He alleges that in 1979 he was arrested and tortured and
ultimately spent a year in prison. In 1982 he was again arrested and
tortured with electro-shock and "falakka". The police allegedly
wanted him to give information about the TKP/ML and about "TIKKO"
(Turkish Workers and Peasants Liberation Army).
In 1983, the applicant set up his business enterprises with
four minority partners. He alleges that the police black-mailed him
and that he had to pay them significant sums of money every week (up
to 100,000 Turkish pounds; approximately 220 French francs).
On 6 June 1983 the applicant received a Turkish passport,
valid for two years. He alleges that he had to pay bribes to receive
it. It appears from this passport that between late 1983 and mid-1985
he made a great many trips abroad. The passport was renewed until
1990 by the Turkish consulate in the Netherlands after the applicant
had fled Turkey.
It appears that on 2 May 1983 the applicant was convicted for
fraud by a Turkish court, but that this case has been reopened and not
yet brought to a final decision. The applicant alleges that various
of his political comrades were heavily sentenced in 1983 and that some
of them were executed under suspicious circumstances. Another of them
has apparently been granted political asylum in France.
In April and May 1985 the applicant's house was searched and
he and his family apparently went into hiding, moving from place to
place at frequent intervals. On 5 November 1985 the applicant fled
Turkey by means of a flight with a ticket purchased by a business
associate in Pakistan. It appears that the applicant's brother had
left by way of Istanbul airport several months before, and that the
applicant had paid bribes to allow him to leave unhindered.
On 5 November 1985 the applicant requested political asylum in
the Netherlands. This was refused on 14 August 1987 by the Deputy
Minister of Justice, inter alia, because he did not consider that the
applicant was being sought in Turkey.
The applicant requested on 12 October 1987 that this decision
be reviewed. Suspensive effect for this request was refused.
The applicant introduced summary proceedings (kort geding)
with the President of the Regional Court (Arrondissementsrechtbank) of
The Hague. On 15 August 1988, in an interlocutory judgment, the
President adjourned the examination of the case in order to have the
authenticity of an arrest warrant established, which the applicant had
just produced.
On 23 March 1990 the President rejected the request for
suspensive effect for the applicant's pending appeals. On the basis
of information provided by the Netherlands Ministry of Foreign Affairs
and the UNHCR, the President considered that the applicant could not
be considered a bona fide political refugee. The President
considered, inter alia, that the alleged arrest warrant was an
authentic document but not an arrest warrant. Furthermore, the
freedom to travel in and out of Turkey which the applicant enjoyed
between 1983 and 1985 and the fact that his passport was renewed
without difficulty in 1985 indicated that he is not wanted by the
Turkish authorities. Finally, the applicant had failed to explain how
he could have paid the alleged bribes while he was in hiding.
COMPLAINTS
1. The applicant complains that, if he is returned to Turkey, he
will be prosecuted for his political actions in the past, and will be
tortured and probably executed under suspicious circumstances. He
invokes Article 3 of the Convention.
In support of this claim the applicant refers to a letter by
Amnesty International which apparently indicates that the documents
which the applicant has produced are authentic and that he will
without doubt be prosecuted and very possibly liquidated if returned
to Turkey. Furthermore, he has produced confidential secret service
documents which illustrate that he has been denounced by a political
comrade, Mr. R.G., as the head of TKP/ML and TIKKO, under the code
names "Teknisyen" and "Patron". These documents indicate that the
applicant managed his business enterprises as a cover for his
political activities, which included general organisation,
intelligence and education. These documents are dated July 1988, and,
according to a letter from the applicant's wife dated 27 November
1989, they were purchased at great expense from corrupt officials.
The applicant has also produced a letter from his Turkish lawyer
indicating that he is indeed being sought, that his family is under
surveillance and that he will surely be arrested upon his return to
Turkey. It is not indicated if these documents have been presented to
the Dutch authorities, or if they have been taken into account in the
summary proceedings.
2. The applicant also complains about the duration of the Dutch
proceedings on his asylum request, which are still pending after
having been initiated on 5 November 1985. He invokes Artile 6 para. 1
of the Convention.
THE LAW
1. The applicant complains that, if returned to Turkey, he will
be subjected to torture or inhuman or degrading treatment, and
possibly to arbitrary execution. 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 Netherlands
Ministry of Foreign Affairs and the United Nations High Commissioner
for Refugees both denied the veracity of the arrest warrant produced
by the applicant and cast doubt on several aspects of his story.
Furthermore, the Commission notes that the President of the Regional
Court adjourned the summary proceedings in order to have the alleged
arrest warrant authenticated, from which it appears that he examined
the applicant's case in detail. The President further noted that the
applicant claims to have purchased a passport, and had it renewed
later, while being the subject of a criminal and/or political trial.
The President also noted that the applicant made many trips outside
Turkey after the alleged conviction of 2 May 1983, passing through
police checks at Istanbul airport on numerous occasions, apparently
unhindered.
Furthermore, the Commission notes that it appears from the
evidence as submitted by the applicant that his Turkish lawyer and
Amnesty International consider that he will be the subject of
prosecution in Turkey in connection with his political past. Assuming
this to be the case, however, the applicant has not substantiated that
this necessary entails being subjected to treatment contrary to
Article 3 (Art. 3) of the Convention. The Commission notes in this respect
that the instances of ill-treatment to which the applicant refers date
from 1979 and 1982.
In these circumstances the Commission considers that the
grounds which the applicant presents in support of his complaint are
not sufficient to substantiate the 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 Turkey.
In any event the Commission notes that after his return to
Turkey the applicant can bring an application before the Commission
under Article 25 (Art. 25) of the Convention in respect of any
violation of his Convention rights by the Turkish authorities.
This part of the application must therefore be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains of the duration of his asylum
proceedings, for which he invokes Article 6 para. 1 (Art. 6-1) of the
Convention.
However, the Commission recalls its case-law according to
which a decision as to whether an alien should be allowed to stay in a
country or be expelled does not involve either the determination of
the alien's civil rights or obligations or of a criminal charge within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see No. 8118/77,
Dec. 19.3.81, D.R. 25 p. 105).
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
&SDECLARES THE APPLICATION INADMISSIBLE&S
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy