CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 juillet 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. 16703/90                       by N.E.                       against the Netherlands             The European Commission of Human Rights sitting in private on 13 July 1990, the following members being present:                 MM. J.A. FROWEIN, Acting President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                Mr.   J. RAYMOND, 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 9 June 1990 by N.E. against the Netherlands and registered on 11 June 1990 under file No. 16703/90;           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 national of Zaire born in 1963.   He is apparently a professional actor and a student.   He is at present resident in Anna Paulowna, the Netherlands.   Before the Commission he is represented by Mr.   L.B.J. Movig, a lawyer practising in Den Helder.           The facts as submitted by the applicant may be summarised as follows.           The applicant was apparently enrolled as a student at the "Institut Supérieur des Techniques Appliquées" at Kinshasa, Zaire.   He appears to have completed his studies there in 1989.   As an actor he took part in plays which criticize the Government of Zaire.   He was also responsible for the public relations of this theatre group, which was made up of students and performed for students.           On 25 February 1989, during a period of student unrest in Kinshasa, the applicant was arrested by the "Brigade Spéciale de Recherche et de Surveillance" (BSRS), and detained at the "CIRCO" military barracks.           In these barracks, the applicant was beaten upon arrival, with batons.   He was placed in a cell of 2 x 4 metres with approximately 30 occupants.   The first four days he received no food.   The cell had no windows nor toilet facilities.   During his time in this cell, the applicant was not beaten or otherwise mistreated.   He was never charged with a crime, nor did he consult a lawyer.           On 29 April 1989 he was transferred to the General Hospital of Kinshasa because he had contracted malaria.   On 20 May 1989, a public holiday, he managed to escape from the hospital and then went into hiding.   Through the help of a friend, the applicant's uncle procured a passport under a false name and an airline ticket to Brussels.           On 3 June 1989 he flew to Brussels, where he handed the false passport and ticket to a person who had accompanied him.   On 4 June 1989 he got a lift to Goes, the Netherlands, where, on 5 July, he requested asylum.   He was in possession of the following identity documents:           a.   Zaire identity card issued 23 July 1980,         b. "Carte d'Artiste" (actor's identity card) issued            8 March 1989,         c.   Birth certificate issued 11 August 1986.           On 28 September 1989 the Deputy Minister of Justice rejected the applicant's asylum request and refused to grant him a residence permit.   It was considered, inter alia, that the applicant had not been politically active and that his story was vague and not entirely credible.   The applicant requested a review of this decision, but this appeal was not granted suspensive effect for his expulsion.           He instituted summary proceedings requesting suspensive effect for his appeals.   On 8 June 1990 this was refused by the President of the Regional Court of The Hague.   The President considered, inter alia, that the authorities of Zaire appeared to be treating students harshly.   However, the applicant's identity card of 23 July 1980 states that he is an "employee".   Furthermore, the "Carte d'Artiste", which was issued while he claims to have been in detention states "comédien, chargé de rel. publ.   Discipline: Théatre", which seems to imply that he is a professional actor.   Therefore it would not appear that he has to fear being treated as a dissident student by the authorities in Zaire.   Finally, the President considered that the applicant did not face a real risk of treatment as prohibited by Article 3 of the Convention.   COMPLAINTS           The applicant complains that, if returned to Zaire, he will face prosecution for having escaped from the hospital where he was detained.   Furthermore, as a dissident student he faces harsh and inhuman treatment at the hands of the authorities of Zaire.   He submits numerous articles of the press and statements by Amnesty International to illustrate the violent reprisals by the Zaire authorities of student demonstrations, notably in Kinshasa in February 1989 and in Lubumbashi in April and May 1990.   He also submits that the Belgian Government is investigating the situation in Zaire with a view to reviewing its policies in accordance with respect for human rights in Zaire.   The applicant invokes Article 3 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 9 June 1990 and registered on 11 June 1990.           On 12 June 1990 the Acting President of the Commission decided not to make an indication under Rule 36 of the Rules of Procedure to the respondent Government that the applicant not be expelled to Zaire pending the Commission's examination of the application.   The applicant was invited to submit further information regarding the risks which he faced in Zaire.   He submitted this information on 26 June 1990.   THE LAW           The applicant complains that if returned to Zaire he will be prosecuted for having escaped from custody and will be ill-treated for his dissident activities with a student theatre group.   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 both the Deputy Minister of Justice and the President of the Regional Court in summary proceedings considered that the applicant's story was not entirely credible.           From the applicant's submissions it is not clear whether or not he had completed his studies.   Nor is it clear whether he was involved in the theatre group in a professional capacity or as a student.           Furthermore, it appears from the articles of the press and the statements by Amnesty International as submitted by the applicant that the harsh behaviour of the authorities of Zaire towards students only manifests itself during periods of student demonstrations and unrest. It was during such a period that the applicant claims to have been arrested, and the Commission notes that he was never formally charged.           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 Zaire.           Therefore, the Commission finds that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Deputy Secretary to the Commission        Acting President of the Commission              (J. RAYMOND)                              (J.A. FROWEIN)