CEDH · CASELAW;DECISIONS;DECCOMMISSION;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. 16830/90                       by A. B.                       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, 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 5 July 1990 by A. B. against the Netherlands and registered on 5 July 1990 under file No. 16830/90;           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 Polish national born in 1965.   At the time of introduction of this application he was in detention in the Netherlands pending his expulsion.   He is represented by Mr.   W.A. Venema, a lawyer practising in Rotterdam.           The facts as presented by the applicant may be summarised as follows.           The applicant comes from a small town in Poland, where it was well known that he sympathised with a political movement which was, inter alia, against the military build up and compulsory military service.   In April 1986, the applicant was called up for his military service, which he performed until November 1986 when he became seriously ill with a disease of the liver.   He was granted extended leave to recuperate.           In May 1988, the applicant was declared physically fit for military service, but psychologically unfit.   He was therefore ordered to do substitute military service.   On 10 October 1988 he was called up and ordered to serve as a refuse collector in the village where he lived.           In December 1990, the applicant deserted from his substitute military service.   He had earlier obtained a passport and now made several trips to West-Berlin to trade in Western goods.   Apparently on 3 January 1990, he was summoned to appear in court on the charge of desertion, which apparently carries a penalty of at least three years.   He fled Poland on 10 January 1990.           The applicant, without success, requested asylum in Austria and the Federal Republic of Germany.   He also remained for a time in the Federal Republic of Germany.   On 16 May 1990 he entered the Netherlands on his way to the United Kingdom where he intended to request asylum at the embassy of the Republic of South Africa.   He was arrested while attempting to board a ferry bound for England, because he did not have a visa for the United Kingdom.           On 5 June 1990, the applicant requested asylum in the Netherlands.   This was refused by the Deputy Minister of Justice on 11 June 1990.   The applicant requested a review of this decision, but this request was not accorded suspensive effect for his deportation. Thereupon he instituted summary proceedings demanding suspensive effect.   On 4 July 1990 this was refused by the President of the Regional Court of The Hague.   The President considered, inter alia, that the applicant's political activities could not lead to prosecution in Poland and that his desertion did not appear to be politically motivated.   Furthermore, the applicant had been able to leave Poland unhindered.   COMPLAINTS           The applicant complains that, if returned to Poland he will be prosecuted for desertion from his substitute military service, to which he was allegedly condemned for his anti-militarist views.   He submits that he will be sentenced to a minimum of three years' imprisonment and alleges that it constitutes inhuman and degrading treatment to expel him and subject him to that imprisonment.           Furthermore, the applicant submits that his status in respect of military service is tantamount to an official declaration that he is "insane".   This has as a consequence that he will never be able to obtain reasonable employment, and that he has had to surrender his driving licence.   Furthermore, he was forced to work as a refuse collector as a punishment for his political views, which work is humiliating to him.           He invokes Article 3 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 5 July 1990 and registered that same day.           On 5 July 1990, the Commission decided not to make an indication to the respondent Government under Rule 36 of its Rules of Procedure.   THE LAW           The applicant complains that if deported to Poland he will face imprisonment for desertion and will never be able to obtain reasonable employment.   He submits that this constitutes inhuman and degrading treatment and punishment and 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 applicant deserted from his substitute military service because he found it humiliating to collect refuse.   He complains of the prison sentence which he can expect in Poland and of not being allowed reasonable employment in the future.           Furthermore, the Commission notes that the President of the Regional Court in the summary proceedings considered that the applicant could not expect prosecution for his political activities. Nor did the President consider that the applicant's desertion was politically motivated.           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 prohibited by Article 3 (Art. 3) of the Convention, if returned to Poland.           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)