CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 octobre 1994

.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 }                          Application No. 23877/94                       by Abakoula ARGALALESS                       against the Netherlands         The European Commission of Human Rights sitting in private on 17 October 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 3 February 1994 by Abakoula ARGALALESS against the Netherlands and registered on 14 April 1994 under file No. 23877/94;         Having regard to :   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on 29       July 1994 and the letter submitted by the applicant's       representative on 4 October 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a citizen of Niger, born in 1968 and at present residing at Heerlen, the Netherlands. Before the Commission he is represented by Mr. C.H.M. Geraedts, a lawyer practising in Brunssum, the Netherlands.         The facts of the case, as submitted by the applicant, may be summarised as follows.         On 19 August 1991 the applicant requested asylum and a residence permit in the Netherlands. In connection with this request he was heard on 6 December 1991 by officials from the Ministry of Justice. The applicant stated that, if he returned to Niger, he would probably be persecuted, as he is a member of the Tuareg tribe in Niger and has spent some time in Libya. He did not receive any military training in Libya as a Tuareg resistance fighter opposing the Government of Niger, but just worked on a farm. He was, however, unable to prove this.         On 27 January 1992 the Deputy Minister of Justice rejected the applicant's request. As regards his request for asylum, it was held that the fact that he belongs to the Tuareg tribe is in itself an insufficient basis for considering that he has a well-founded fear of persecution. As regards his request for a residence permit, the Deputy Minister held that there were no compelling reasons of a humanitarian character on the basis of which a residence permit could be granted.         On 4 March 1992 the applicant requested the Deputy Minister to revise (herziening) the decision of 27 January 1992 and to grant suspensive effect to this revision request. He received no reply.         Pursuant to Section 34 para. 2 of the Aliens Act (Vreemdelingenwet) a request for review is assumed to be rejected when the Deputy Minister does not decide on the request within three months.         On 9 June 1992 the applicant filed an appeal against the Deputy Minister's fictitious negative decision with the Litigation Division of the Council of State (Afdeling Rechtspraak van de Raad van State). This appeal is still pending.         Since the proceedings before the Council of State have no suspensive effect the applicant started summary proceedings (kort geding) before the President of the Regional Court (Arrondissements- rechtbank) of The Hague, requesting an injunction against his expulsion pending the proceedings before the Council of State.         On 27 July 1992 the President of the Regional Court rejected this request for an injunction. He considered that the applicant had failed to substantiate the alleged risk of persecution on the basis of being a Tuareg who had spent some time in Libya. The situation could be different for Tuaregs who have in fact received military training in Libya, but this was not the situation in the applicant's case since he had only worked on an agricultural project. The President further considered that no compelling reasons of a humanitarian character had appeared on the basis of which the applicant should be allowed to stay in the Netherlands.         On 4 January 1993 the applicant requested the United Nations High Commissioner of Refugees (UNHCR) to inform him whether or not, in view of his personal situation in combination with the general situation of the Tuaregs in Niger, he could be regarded as a refugee and whether or not his return to Niger could entail a risk to his life or safety.         By letter of 23 March 1993 the UNHCR replied that the findings made in the course of an inquiry "show that due to the de facto imposition of martial law in Northern Niger, [the applicant] has a well-founded fear of persecution in Niger. The fact that [the applicant] has been in Libya constitutes in our view an additional and personal factor to establish his well-founded fear of persecution."         On the basis of this letter the applicant requested the Deputy Minister of Justice to reconsider his application for asylum and a residence permit. The Deputy Minister requested the Ministry of Foreign Affairs to submit information as regards the situation in Niger. Subsequently the Ministry of Foreign Affairs made an inquiry into the situation in Niger.         In a report of 30 November 1993 the Ministry of Foreign Affairs informed the Deputy Minister of Justice, inter alia, that Tuaregs in Niger who have fled to neighbouring countries are considered by the UNHCR as prima facie refugees, i.e. as persons who suddenly and in large numbers find themselves in another country and might require immediate material help. The Ministry further states that, since 11 March 1993, a truce is in force in Northern Niger between the Government army and the rebelling Tuaregs united in the "Front de Libération d'Aïr et d'Azawak" (FLAA), but that the last prolongation of this truce on 10 September 1993 had only been signed by one of the three groups united in the FLAA. As regards individual requests for asylum by Tuaregs from Niger, the report stated that the UNHCR examines them on an individual basis, whereas, apart from being a Tuareg, additional information indicating persecution is also taken into account in this examination.         A second set of summary proceedings instituted by the applicant has been adjourned several times at the request of the Deputy Minister of Justice pending the inquiry by the Ministry of Foreign Affairs.         By letter of 29 August 1994 the lawyer representing the Government in the summary proceedings informed the applicant's lawyer that, in view of the numerous summary proceedings still pending and the general undesirability of summary proceedings pending too long, the applicant had been granted permission to remain in the Netherlands pending the appeal proceedings before the Council of State.   COMPLAINT         The applicant complains that his expulsion to Niger would be contrary to Article 3 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 3 February 1994 and registered on 14 April 1994.         On 20 May 1994 the Commission decided to apply Rule 36 of the Commission's Rules of Procedure until 8 July 1994, to communicate the application to the respondent Government and to invite them to submit their observations on the admissibility and merits of the application.         On 6 July 1994 and 8 September 1994 the Commission decided to prolong the application of Rule 36, on the latter occasion until 21 October 1994.         The Government's observations were submitted on 29 July 1994 and transmitted to the applicant's representative for comments.         By letter of 4 October 1994 the applicant's representative informed the Commission that the applicant did not wish to pursue his application, as he had been granted permission to remain in the Netherlands pending the appeal proceedings before the Council of State.   REASONS FOR THE DECISION         Having regard to Article 30 para. 1 (a) of the Convention, the Commission notes that, by letter of 4 October 1994, the applicant's lawyer informed the Commission that the applicant does not intend to pursue his application, since he has been granted permission to stay in the Netherlands pending the outcome of the appeal proceedings before the Council of State. It finds no special circumstances regarding respect for human rights as defined in the Convention which require examination of the application to be continued, in accordance with Article 30 para. 1 in fine of the Convention.         For these reasons, the Commission, unanimously,         DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.   Secretary to the Commission                  President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)