CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    The European Commission of Human Rights sitting in private on 13 May 1986, the following members being present:                   MM C.A. NØRGAARD, President                    G. SPERDUTI                    J.A. FROWEIN                    F. ERMACORA                    E. BUSUTTIL                    G. JÖRUNDSSON                    S. TRECHSEL                    B. KIERNAN                    A. WEITZEL                    J.C. SOYER                    H.G. SCHERMERS                    H. DANELIUS                    G. BATLINER                Mrs G.H. THUNE                Sir Basil HALL   Mr   H.C. KRÜGER, Secretary to the Commission   Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 11 June 1985 by K.K. against the Netherlands and registered on 12 June 1985 under file No. 11569/85 ;   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 facts of the case, as they have been submitted by the parties, may be summarised as follows:   The applicant is a Turkish citizen, born in 1960 at Hozat, Turkey.   He resides at Amsterdam, the Netherlands.   In the proceedings before the Commission, he is represented by Mrs. E. Akkermans, a lawyer practising at Rotterdam.   It appears that the applicant, who is a Kurd, was a founding member of the association Halk-Der (a subdivision of the DEV-Genc) at Hozat and was a member of the board of this association.   The applicant claims that DEV-Genc is the forerunner of the student movement in Turkey.   In 1979, the applicant was apparently arrested by the police at Elarig for having participated in a prohibited manifestation.   He claims that he was detained for 23 days in the so-called quarter "1800", before he was brought before a judge.   He was subsequently released for lack of evidence.   The applicant has submitted that his organisation was not illegal before the political events of 12 September 1980 but that it was not allowed to engage in political activities.   After this date, however, all members of the board were arrested by the military and only the applicant managed to escape.   A brother of the applicant, who apparently belonged to a leftist organisation, appears to have been killed by the police on 19 June 1982 during an attempt to arrest him.   It further appears that the applicant resided in the Federal Republic of Germany, at Böblingen, from 13 July 1980 until 10 July 1984.   His request for asylum was rejected in first instance and the applicant claims that he did not await the result of a further request (Folgeantrag) since he had no confidence in the German authorities and that he therefore went to the Netherlands.   On 19 November 1984, the applicant requested either to be admitted to the Netherlands as a refugee or to be given a residence permit based on political asylum.   However, both requests were rejected on 3 May 1985 by the Deputy Minister of Justice, who considered, inter alia, that the trustworthiness of the applicant's declaration appeared doubtful since he had not informed the authorities of his stay in the Federal Republic of Germany before his arrival in the Netherlands but had stated that he had come to the Netherlands direct from Turkey.   The applicant had also failed to give an explanation for this false information.   The Deputy Minister, moreover, considered that a letter dated 30 July 1984 addressed to the applicant's father, which should have demonstrated that the applicant was wanted by the authorities, did not contain personal data which fitted the applicant.   In addition, even assuming that the applicant would be a refugee, he could have obtained adequate protection against refoulement to Turkey in the Federal Republic of Germany which was the first country that received him.   The applicant, thereupon, introduced a request for revision on 14 May 1985.   Since this request was not given suspensive effect, the applicant initiated summary procedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of Amsterdam to obtain an order that he would not be expelled until a decision had been taken on his request for revision.   On 9 July 1985, the representative of the United Nations High Commissioner for Refugees in the Netherlands informed the applicant's lawyer that the applicant had failed to participate in the proceedings before the Administrative Court (Verwaltungsgericht) of Stuttgart. The representative also noted that the applicant had given three, rather different, explanations of why he feared persecution in Turkey, which had raised doubts as to the sincerity of his request for asylum.   However, on 6 June 1985, the President rejected the applicant's request since the applicant could have obtained adequate protection in the Federal Republic of Germany, which had to be considered as the country that first received him.   The President, moreover, considered that no facts or circumstances had been demonstrated which would warrant the conclusion that the Deputy Minister of Justice was acting in contravention of the law by not granting suspensive effect to the applicant's request for revision which had no reasonable prospect of success.   It appears that the applicant has since been in hiding.   COMPLAINTS   The applicant complains that he has reason to fear that he would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if he were to be expelled to Turkey.   He alleges that the Netherlands authorities would thus be indirectly responsible for a violation of Article 3 (Art. 3) of the Convention.   The applicant contends that he engaged in the same political activities as his brother who was killed by the police in 1982, and claims that he, too, is being looked for by the Turkish authorities. He has submitted a document dated 30 July 1984, from which it appears that his father has been asked to disclose his whereabouts, and has been threatened with prosecution if he failed to hand his son over to the authorities.   The applicant has also submitted a declaration by the Amsterdam division of Halk-Der that his life would be in danger if he were expelled to Turkey.   In addition, he has submitted a declaration by his cousin and another person, who reside in the Netherlands but visited Turkey during their holidays, to the effect that the applicant is being looked for by the military authorities and that his father and relatives are regularly questioned as to his whereabouts.   The applicant also claims that the Kurdish population in Turkey has recently been systematically oppressed both politically and economically.   Finally, the applicant claims that he participated in political activities against the Turkish Government in the Federal Republic of Germany and took part in demonstrations organised by the Halk-Der. Turkish journalists are known to take photographs of demonstrators and, according to the applicant, the Turkish secret service is certainly aware of his political activities in the Federal Republic of Germany.   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 11 June 1985 and registered on 12 June 1985.   On 12 June 1985, the President decided to indicate to the Netherlands Government, in accordance with Rule 36 of the Commission's Rules of Procedure, that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Commission to refrain from expelling the applicant to Turkey until the Commission had had an opportunity to examine the application during its session in July 1985.   On 14 June 1985, the Rapporteur requested the Netherlands Government to provide information concerning the reasons for the decision to expel the applicant to Turkey.   On 28 June 1985, the Government submitted the requested information, and the applicant's comments in reply were submitted on 9 July 1985.   On 12 July 1985, the Commission decided not to renew the indication under Rule 36 of its Rules of Procedure.   The Commission further decided to invite the respondent Government pursuant to Rule 42 para. 2, sub-para. b of its Rules of Procedure to submit written observations on admissibility and merits before 31 October 1985.   The Government's observations were submitted on 29 October 1985, the applicant's observations in reply on 5 December 1985.   On 13 January 1986, the Government informed the Commission that they would prefer to submit any further observations in writing.   SUBMISSIONS OF THE PARTIES   A.     The Government   (a)      Exhaustion of domestic remedies   The Netherlands Government take the view that domestic remedies as referred to in Article 26 (Art. 26) of the Convention have been exhausted by the applicant.   His complaint relates to his deportation from the Netherlands but the same complaint was rejected by the President of the Regional Court of Amsterdam, giving judgment on an application for summary proceedings on 6 June 1985.   This judgment was confirmed upon appeal by the Court of Appeal of Amsterdam on 17 October 1985.   (b)      The facts   The Netherlands Government express serious doubts concerning the veracity of the applicant's account of the facts.   These doubts have since been strengthened by the facts stated in the further request for asylum (Asylantrag-Nachfolgeantrag) of 18 September 1984 submitted to the authorities in the Federal Republic of Germany on behalf of the applicant.   The latter petition e.g. states a reason for leaving his country which differs significantly from that which the applicant gave to the aliens' police in Rotterdam two months later, as indicated in the police report of 5 December 1984.   The Government submit that it has in the meantime become apparent that the applicant has evaded the supervision of the aliens' police.   His current place of residence in the Netherlands is unknown. If it should be discovered in the near future, the applicant will be deported, unless he chooses to leave the country voluntarily.   (c)      The law   Article 3 (Art. 3) of the Convention   The applicant believes that his deportation to Turkey by the Netherlands Government would constitute a violation of Convention because he says that he has reasons to fear treatment contrary to that provision in that country.   In particular, the applicant claims that he fears detention in what he calls one of the concentration camps for Kurds or immediate imprisonment.   Quite apart from the aforementioned contradiction between the stories told by the applicant in Germany and later in the Netherlands concerning his flight, and disregarding the doubts to which this gives rise as regards the veracity of the applicant's claims, it is evident that the applicant left his country before the coup of 1980 and that he was never convicted of the activities referred to in the application.   On the contrary, he was released for lack of evidence.   In the view of the Netherlands Government there is no reason to believe that the applicant has grounds to fear persecution on account of his activities, particularly when one considers their limited nature and extent and the time at which they took place.   The representative of the United Nations High Commissioner for Refugees in The Hague likewise has doubts about the various stories concerning the applicant's flight, in addition to which he criticises the applicant's uncooperative attitude with regard to his application for asylum in the Federal Republic of Germany.   On the grounds of the documents submitted both by the applicant and by the Netherlands Government, the representative of the UNHCR does not conclude that the applicant is a refugee.   As regards the other facts mentioned by the applicant, the Netherlands Government would observe that they are formulated in such general terms that it is impossible to conclude from them that he has justified reasons to fear persecution.   In the past the Commission has repeatedly found that, in exceptional cases, deporting or extraditing a person to a particular state may constitute treatment contrary to Article 3 (Art. 3) of the Convention. However, the person concerned must be able to show that he has serious reasons (see X. v. the Federal Republic of Germany, Dec. No. 6315/73, 30.9.74, DR 1, p. 73) or substantial grounds (cf. Lynas v. Switzerland Dec. No. 7317/75, 6.10.76, DR 6, p. 141) to fear such treatment. Moreover, in cases in which an applicant claims that he is in danger of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention there must be an objective danger to the applicant (see Altun v. the Federal Republic of Germany, Appl. No. 10308/83, Decision of 3 May 1983, and Siddique v. the Netherlands, Appl. No. 10633/83, Decision of 5 March 1984).   In the view of the Netherlands Government, the applicant has not been able to show convincingly enough either that such serious or substantial reasons exist or that there is such an objective danger.   On the above grounds, the Netherlands Government take the view that the application must be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   B.     The applicant   The applicant refers to his earlier submissions.   He draws attention to the fact that the representative of the United Nations High Commissioner for Refugees in the Netherlands did not conclude that he was not a refugee but only that some clarifications were required.   THE LAW   The applicant has complained that he would be subjected to treatment contrary to Article 3 (Art. 3) of the Convention if he were expelled to Turkey.   Article 3 (Art. 3) of the Convention provides that   "   No one shall be subjected to torture or to inhuman or degrading treatment or punishment. "   The Commission notes that the applicant has failed to clarify certain contradictions in his respective statements to the authorities in the Federal Republic of Germany and the Netherlands authorities.   In the Commission's view, this creates doubts about the facts upon which the applicant bases his affirmation that he might be subjected to treatment contrary to Article 3 (Art. 3) of the Convention, if he were expelled to Turkey.   Under these circumstances, the Commission finds that the applicant has failed to substantiate his allegations about the risks he would run, if expelled to Turkey.   In addition, the Commission does not find that there are sufficient indications of a general nature which would lend credence to the applicant's claim that he risks being subjected to treatment contrary to Article 3 (Art. 3) of the Convention if expelled to Turkey.   It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   For these reason, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                President of the Commission      (H.C. KRÜGER)                                (C.A. NØRGAARD)