CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1987

.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 }    AS TO THE ADMISSIBILITY OF     Application No. 11769/85 by Tauseef AKTHAR against the Netherlands             The European Commission of Human Rights sitting in private on 2 March 1987, the following members being present:                     MM C.A NØRGAARD, President                    J.A. FROWEIN                    S. TRECHSEL                    B. KIERNAN                    A.S. GÖZÜBÜYÜK                    A. WEITZEL                    J.C. SOYER                    H.G. SCHERMERS                    H. DANELIUS                    H. VANDENBERGHE                    F. MARTINEZ                  Mr   H.C. KRÜGER, Secretary to the Commission           Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 26 August 1985 by Tauseef Akthar against the Netherlands and registered on 30 September 1986 under file No. 11769/85;           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 applicant may be summarised as follows.           The applicant is a Pakistani citizen, born in 1952.   At the time of introducing the application he resided at Amsterdam, the Netherlands.           In the proceedings before the Commission the applicant is represented by Mrs.   M.D. van Aller, a lawyer practising in Amsterdam.           The applicant claims that he has been a member of the Pakistan People's Party (P.P.P.) since September 1970, and that he was an active member of this party between 1970 and 1977.           He further claims that, after the political events in Pakistan, he was arrested in June 1979 during a demonstration and that he was kept in prison until September 1981.   During this period he contends that he was ill-treated.           Apparently because of efforts by his family, the applicant was released, having signed a statement that he would undertake no further activities on behalf of the P.P.P.           The applicant claims that subsequently he nevertheless continued his activities on behalf of the P.P.P., and that he left Pakistan on 17 May 1982 when the police were looking for him again.           According to the applicant, he then successively went to Iran, Turkey, Bulgaria, Yugoslavia, Austria, Switzerland, France and Belgium.           On, or about, 7 June 1982 the applicant came to the Netherlands and on 9 August 1982 he reported himself to the police at Den Helder requesting to be admitted as a refugee and to be given a residence permit.           However, on 2 December 1982 the Deputy Minister of Justice rejected the applicant's requests.           The Deputy Minister considered, inter alia, that the applicant could not be regarded as a prominent opponent of the military regime in his country, and that he had not substantiated his allegations that he risked persecution in his home country.           The applicant thereupon introduced a request for revision, which was initially granted suspensive effect.   This suspensive effect was then withdrawn because the applicant was said to have submitted forged documents.           On 26 April 1983, the applicant initiated summary proceedings before the President of the Regional Court (Arrondissementsrechtbank) of The Hague, and requested that his expulsion be prohibited until a decision had been given on his request for revision.           On 25 May 1983, the President of the Regional Court granted the applicant's request.   He found that it could not be said that the applicant clearly was not a refugee.           On 1 July 1983, the Deputy Minister of Justice rejected the applicant's request for revision.   The Deputy Minister considered, inter alia, that the applicant had not demonstrated that he risked persecution for political reasons in Pakistan.   Moreover, the Deputy Minister found that certain evidence submitted by the applicant was forged, and noted that the applicant had apparently been able to obtain a passport and leave Pakistan without any difficulties.           The applicant thereupon appealed to the Council of State's Division for Jurisdiction (Afdeling Rechtspraak van de Raad van State).           On 8 July 1985, the Council rejected the applicant's appeal. The appeal was declared inadmissible insofar as it was directed against the refusal of a residence permit, on the ground that the applicant had not yet resided in the Netherlands for one year, and since the decision had been taken in conformity with the advice of the Consultative Committee on Aliens' Affairs (Adviescommissie Vreemdelingenzaken).           With regard to the refusal to admit the applicant as a refugee, the Council found that he had not demonstrated that his fear of persecution in Pakistan was well-founded.   In this respect, the Council noted that the applicant could not be regarded as a prominent member of the P.P.P. and that mere membership of that party did not expose someone to persecution by the Pakistani authorities.   Moreover, the Council was not convinced that certain statements, which according to the applicant had been made by his Pakistani lawyers, were authentic.   The Council also attached importance to the fact that the applicant, apparently without any difficulty, had left Pakistan on 17 May 1982 with a valid passport which was stamped by Pakistani border officials.   Furthermore, the Council also had regard to the advice of the representative of the United Nations High Commissioner for Refugees, who had stated at the hearing, inter alia, that the applicant's account was in itself inconsistent and differed considerably from what was known about the situation in Pakistan. The representative considered it unlikely that the applicant was a refugee, although he did not want to exclude this possibility.           The applicant's present whereabouts are unknown, but his lawyer has informed the Commission that she has been instructed to pursue the application.     &_COMPLAINTS&S           The applicant claims, inter alia, that the Council of State cannot be considered as an independent and impartial tribunal.           In addition, he complains about the working methods of the representative of the United Nations High Commissioner for Refugees concerning their consultative work in the course of the national proceedings.           In this respect, he alleges a violation of Articles 6 para. 1 and 13 of the Convention.           Moreover, the applicant complains that his intended expulsion to Pakistan violates Articles 3 and 5 para. 1 (f) of the Convention insofar as it would constitute inhuman treatment and a disguised extradition.   THE LAW   1.       The applicant has complained that his expulsion would subject him to inhuman measures contrary to Article 3 (Art. 3) of the Convention, which provides:           "No one shall be subjected to torture or to inhuman         or degrading treatment or punishment. "             The Commission, however, finds that the applicant has failed to substantiate his allegations in this respect, and this part of the application must therefore be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       Furthermore, the applicant has complained that his intended expulsion constitutes an extradition in disguise, and he has invoked Article 5 para. 1 (f) (Art. 5-1-f) of the Convention, which provides:           "1.   Everyone has the right to liberty and security         of person.   No one shall be deprived of his liberty         save in the following cases and in accordance with         a procedure prescribed by law:           (f) the lawful arrest of a person to prevent his effecting             an unauthorised entry into the country or of a person             against whom action is being taken with a view to             deportation or extradition;"           The Commission, however, finds that the facts of the case as submitted by the applicant do not raise any issue under this provision, and this part of the application must therefore also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       In addition, the applicant has complained that he did not have a fair trial before an independent and impartial tribunal.   In this respect he has also complained about the working methods of the United Nations High Commissioner for Refugees concerning their consultative work in the course of the national proceedings.   He has invoked Article 6 para. 1 (Art. 6-1) of the Convention, which provides, inter alia:           "1.    In the determination of his civil rights and         obligations or of any criminal charge against him,         everyone is entitled to a fair and public hearing         within a reasonable time by an independent and         impartial tribunal established by law...."           Insofar as the applicant's complaints relate to the working methods of the United Nations High Commissioner for Refugees, the Commission finds that the Council of State cannot be held responsible for the working methods of people or institutions whose work is strictly limited to giving non-binding advice.   In particular it has not been demonstrated that these working methods were such that the Council of State violated Article 6 (Art. 6) of the Convention by taking the advice of the United Nations High Commissioner into account.   Therefore this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Furthermore, the Commission has considered, in the context of previous cases brought before it, the question of the applicability of Article 6 para. 1 (Art. 6-1) of the Convention to deportation matters.   The Commission has held in those cases that a decision as to whether an alien should be allowed to stay in a country is a discretionary act by a public authority and that it does not involve as such the determination of civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. No. 8144/77, Dec. 2.5.1979, D.R. 17 p. 157).           It follows that Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to the proceedings before the Dutch courts in the present case and that this part of the application must therefore be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   5.       Finally, the applicant has complained that he did not have an effective remedy and has invoked Article 13 (Art. 13) of the Convention, which provides:   "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."           The Commission, however, considers that the applicant cannot be said to have had an arguable claim under the Convention and, in any case, noting that the examination of the applicant's complaints by the Council of State could have resulted in the quashing of the decision of the Deputy Minister, finds that the appeal to the Council constituted an effective remedy within the meaning of Article 13 (Art. 13) of the Convention.           The remainder part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DELARES THE APPLICATION INADMISSIBLE     Secretary to the Commission                President of the Commission        (H.C. KRÜGER)                                (C.A. NØRGAARD)