CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 mai 1990

.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. 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)