CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 novembre 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. 13292/87                       by S.T.N.                       against the Netherlands             The European Commission of Human Rights sitting in private on 13 November 1987, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 15 October 1987 together with a request to apply Rule 36 of the Commission's Rules of Procedure by S.T.N. against the Netherlands and registered on the same day under file N° 13292/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the decision of the Commission on 16 October 1987 to invite the parties to submit further information on the application;           Having regard to the information submitted by the Government on 2 and 3 November 1987 and to the applicant's reply received on 10 November 1987;           Having regard to the decision of the President on 5 November 1987 not to apply Rule 36 of the Rules of Procedure;           Having regard to the renewed request for application of Rule 36 and the decision of the Commission on 10 November 1987 not to apply Rule 36;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case as submitted by the parties may be summarised as follows.           The applicant is a Togolese citizen, born in 1959 and a student.   He is at present living unlawfully in the Netherlands and represented in the proceedings before the Commission by Mr.   W.A. Venema, a lawyer practising in Rotterdam.           The applicant entered the Netherlands on 26 January 1987. On 9 February 1987, the applicant introduced a request for political asylum and a request for a temporary residence permit with the police in Rotterdam.   He is under an obligation to report weekly to the police.           The applicant was interviewed on 8 July 1987 by a civil servant (contactambtenaar) of the Ministry of Justice.   The applicant declared that he had escaped from arrest in Togo on 5 October 1986, after an attempt to overthrow the Government had failed on 23 September 1986. The authorities were looking for him because his brother Mohammed Souley Sebini was among the people arrested for having been involved in this attempted coup.   The applicant himself denied having been involved in the coup, although his brother asked him to participate. He stated that, whilst waiting for his former nanny to collect travel money for him, he was informed that his brother had been killed on government order.   The applicant lived in hiding in a distant village in Togo until 20 January 1987, when he entered Benin on foot.   He subsequently left Benin by plane on 23 January 1987 and travelled via Lagos (Nigeria) to Paris (France) where he arrived the next day.   A compassionate and unidentified Senegalese paid for his train ticket to the Netherlands.   Two days later, on 26 January 1987, he arrived by train in Rotterdam where he reported to a refugee centre.   He cannot recall the name of the airline, the colour of the aircraft, the name and address of the Senegalese where he had stayed in Paris and other such details.   He considered that France and Nigeria have been involved in the attempted coup and that Benin cannot be regarded as a democratic country.   For these reasons he did not request asylum in those countries.           The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected his requests on 9 July 1987.   With regard to the request for asylum, the Deputy Minister observed that the applicant, who had lived in Togo from the date of his alleged escape from arrest until 20 January 1987, had failed to show that he would be liable to persecution in Togo in the sense of the 1951 Geneva Convention on the Status of Refugees.   She observed, furthermore, that the applicant had stayed in Benin and France before entering the Netherlands and that, consequently, the Netherlands could not be regarded as the first receiving country.   After having decided that the applicant could not receive asylum in the Netherlands, the Deputy Minister found no reason of general interest for granting the request for a temporary residence permit.           Against this decision the applicant has introduced a request for review which has not yet been determined.           The applicant, who sought a suspension of a potential deportation pending the review procedure, seized the President of the Regional Court (Arrondissementsrechtsbank) of Rotterdam in injunction proceedings (kort geding).   This request was rejected on 13 October 1987. The President considered that the review could not reasonably be expected to be granted, given the inconsistent and implausible escape story of the applicant.   An appeal against this decision before the Court of Appeal (Gerechtshof) is pending.           The applicant failed to comply with his duty to report to the police after the injunction proceedings and is now in hiding.   COMPLAINTS   1.       The applicant, invoking Article 3 of the Convention, fears that he will be subjected to treatment contrary to this provision since the Togolese authorities appear to accuse him of having been closely associated with the attempt to overthrow the Government, as a result of which his brother was arrested and later killed.   He complains that expulsion to a country that will punish him according to a procedure contrary to Articles 3 and 6 of the Convention amounts itself to a violation of Article 3 of the Convention.   2.       The applicant submits that the deportation in itself would amount to a violation of Article 3, given his poor health and the necessity of treatment which is unavailable to him in Togo.     &_PROCEEDINGS BEFORE THE COMMISSION&S           The application was introduced and registered on 15 October 1987, together with a request for application of Rule 36 of the Commission's Rules of Procedure, in order to postpone the applicant's deportation to Togo.           On 16 October 1987, after a preliminary examination of the admissibility of the application, the Commission decided to adjourn its decision on the Rule 36 request and instructed the Secretary to request the parties to submit further information in accordance with Rule 42 para. 2 (a) of its Rules of Procedure.           The information submitted by the applicant reached the Commission's Secretariat on 20 October 1987 and was subsequently transmitted to the Government for reply.           The information submitted by the Netherlands Government reached the Commission's Secretariat on 5 November 1987 and was transmitted to the applicant for his reply.           On the same day, the President of the Commission decided not to apply Rule 36 of the Rules of Procedure.           The applicant's reply was received on 10 November 1987, together with a renewed request to apply Rule 36.           On 10 November 1987, the Commission considered the new request and decided not to apply Rule 36.   SUBMISSIONS OF THE PARTIES   A.       The Government           The Netherlands Government intend to expel the applicant to Togo after concluding from the hearing held on 8 July 1987 that he is not a refugee under the provision of the 1951 Geneva Convention.   The deportation will take place as soon as the applicant has been located.           The Representative of the United Nations High Commissioner for Refugees in the Netherlands was consulted.   On 27 October 1987, the Representative decided on the facts before him, and after consultation with the main office in Geneva, that the applicant cannot be regarded as a refugee under the 1951 Geneva Convention.   The terms of this decision were also communicated to the applicant's representative.     B.       The applicant             The applicant contends that, if deported, he is likely to be severely punished according to a procedure contrary to Articles 3 and 6 of the Convention.   He fears for his life, given the fact that his brother died in prison.           He submits as further proof a Togolese newspaper clipping in the Ewe language, apparently giving twenty names of people involved in the coup.   Among these names appears the name of Souley Mohamed Sebini.           He asserts that neither France nor Benin can be regarded as first receiving country, given the fact that he only stayed in these countries for the time necessary to organise his passage.   Moreover, the French and Benin authorities could not protect him against expulsion to Togo.   The attempted coup led to a nine-day intervention by French troops in response to a request from the Togolese President General Eyadema.   Benin is bound by a security agreement concluded with Ghana, Nigeria and Togo to give mutual access to its territory to police authorities of another country, while the extradition treaty between Togo and Benin can be abused to cover refugees.           In reply to the Government's information, and in particular the position taken by the UNHCR Representative, the applicant submits that, in the Togolese situation, it is conceivable that family members can be persecuted for political activities of another family member. The applicant refers to the 1987 Report of Amnesty International (A.I.) and to a special A.I. report, 'Togo: Political Imprisonment and Torture'.   In these reports, A.I. expressed its concern about the imprisonment of prisoners of conscience, and the detention without trial of other suspected opponents of the Government.   The reports describe cases of torture and ill-treatment of detainees, involving in fact cases of brothers and sisters.   The reports also state that 35 people were charged after the attempted coup.   Thirteen people were sentenced to death.           The applicant further submits that he suffers from schistosomiasis (a disease which affects the intestines), for which he alleges that he could not receive adequate treatment in Togo.   He introduces a letter of his physician, stating that further observation on the progress of the disease and its treatment should take place in the Netherlands and not in Togo as the illness can be fatal.   THE LAW   1.       The applicant complains that his expulsion to Togo would amount to treatment contrary to Article 3 (Art. 3) of the Convention since, if expelled, he would probably be subjected to political persecution and risk death either by sentence or ill-treatment in prison.   2.       The Commission observes that the proceedings pending in the Netherlands, in their present state, do not suspend the execution of the decision to expel the applicant.   According to the Commission's constant case-law, such remedies are not effective remedies within the meaning of Article 26 (Art. 26) of the Convention and need not be exhausted, where the allegation is that of a breach of Article 3 (Art. 3) of the Convention in view of possible ill-treatment in the receiving country (No. 7216/75, Dec. 20.5.76, D.R. 5 pp. 137, 142; No. 10760/84, Dec. 17.5.84, D.R. 38 p. 224).   3.       The Commission recalls that the right to asylum and the right not to be expelled or extradited are not as such included among the rights and freedoms mentioned in the Convention (No. 7256/75, Dec. 10.12.76, D.R. 8 p. 161; No. 7465/76, Dec. 29.9.76, D.R. 7 p. 153).           However, the expulsion or extradition of a person may, under certain exceptional circumstances, raise an issue under Article 3 (Art. 3) where there is a serious reason to believe that he or she will be subjected to treatment prohibited by that provision in the receiving country.   The Commission refers in this respect to its constant case-law (cf.   No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48; No. 10479/84, Kirkwood v. the United Kingdom, Dec. 12.2.84, D.R. 37 p. 158; No. 10760/84, 17.5.84, D.R. 38 p. 224).   4.       The applicant submits that, in the event of expulsion, he might be tried under a procedure which does not comply with the guarantees laid down in Article 6 (Art. 6) of the Convention.           The Commission does not consider it necessary to examine this allegation.   Even if it were well-founded, it would not in itself make expulsion appear as inhuman treatment (No. 10308/83, Altun v.   Federal Republic of Germany, Dec. 3.5.83, D.R. 36 pp. 209, 232).   5.       However, the risk of political persecution as such may raise an issue under Article 3 (Art. 3) if it could lead to an arbitrary sentence or inhuman detention conditions (No. 9012/80, Dec. 9.12.80, D.R. 24 pp. 205, 219; No. 10308/83, Dec. 3.5.83, Altun v.   Federal Republic of Germany, D.R. 36 pp. 209, 233; No. 10760/84, Dec. 17.5.84, D.R. 38 p. 224).   In the present case the Commission finds no appearance of such a violation.           The Commission notes that in the asylum proceedings in the Netherlands it was found, after investigation of the applicant's submissions, that he does not meet with the requirements to be granted refugee status under the 1951 Geneva Convention, and that administrative decision has been considered by civil courts pending the review proceedings.           The Commission further notes that the Representative of the United Nations High Commissioner for Refugees in the Netherlands has examined the case and found no reason to avail himself of his right to intervene in the proceedings in the Netherlands, since the applicant could, in his opinion, not be granted refugee status under the 1951 Geneva Convention.           Under its independent duty under the Convention to assess itself the existence of an objective danger, the Commission notes that the applicant declared that he had never been implicated in the attempted coup.   The applicant has never before been in conflict with the Togolese authorities, neither for political nor for criminal activities, and he does not submit any evidence showing that he is likely to be persecuted in Togo.   6.       Having considered all the elements of the file, the Commission finds that the applicant has failed to substantiate his allegation that he would risk inhuman treatment if he returned to Togo.   7.       The Commission concludes that an examination of the application in this respect does not disclose any appearance of a violation of Article 3 (Art. 3) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   8.       The applicant further submits that, due to his virulent illness, deportation itself would be tantamount to a violation of Article 3 (Art. 3) of the Convention.           The Commission notes that the illness and its alleged seriousness are maintained in a statement of the applicant's private physician and has been submitted to the Commission only on 9 November 1987, where it was received the following day, as a reply to the information given by the Government.   The Commission notes that the applicant is unwilling to have himself examined by the Netherlands authorities for fear of deportation.           The applicant now bases his application on a completely different reason which he has not yet submitted as an argument in the domestic proceedings.   The Commission considers that this new allegation should be examined as a separate matter.           The Commission notes that, if the allegation is true, the applicant could invoke Article 25 (Art. 25) of the Aliens Act (Vreemdelingenwet) before the domestic authorities, according to which deportation of an alien from the Netherlands should not take place if his state of health does not permit such deportation.   The Commission therefore concludes that the applicant has not exhausted the domestic remedies available to him in the Netherlands.   Having rejected the first section of this application as being manifestly ill-founded, the Commission finds there are no special circumstances which could absolve the applicant from presenting himself to the authorities for a medical examination and from taking proper proceedings in the Netherlands on the basis of the results of such an examination.   9.       It follows that the application must, in this respect, be rejected under Article 27 para. 3 (Art. 27-3)   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)