CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 1997

.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. 33124/96                       by X.                       against the Netherlands        The European Commission of Human Rights sitting in private on 20 October 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 27 August 1996 by X. against the Netherlands and registered on 24 September 1996 under file No. 33124/96;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      6 May 1997 and the observations in reply submitted by the      applicant on 21 July 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen of Kurdish origin, born in 1952, and at present residing in the Netherlands. Before the Commission he is represented by Ms G.E.M. Later, a lawyer practising in The Hague.        The facts of the case, as submitted by the parties, may be summarised as follows.        The applicant entered the Netherlands on 5 June 1995 and, on 7 June 1995, requested asylum, or alternatively a residence permit for humanitarian reasons. According to the applicant, he risked political persecution in Turkey for his known sympathies for the cause of the Kurdish people. He stated that he had been politically active between 1984 and 1992 at the municipal level and that his brother I.'s political activities for the Kurdish people had made I., a founding member of the political party HEP (Halkin Emek Partisi - People's Working Party; at present an illegal and dissolved pro-Kurdish party), a public figure nationwide. As a result of these political activities, the Turkish authorities started to exert pressure on the applicant's family.        The applicant stated that he had been arrested in 1992 on five occasions and that he had been detained for periods varying from one week to twenty days in the course of which he had been questioned and ill-treated. He also stated that, together with his brother I. and thirteen others, he had been prosecuted on charges of aiding and abetting the PKK (Kurdish Workers' Party - an armed separatist movement). In 1994 he learned that, by judgment of 23 December 1992, the State Security Court of Diyarbakir had acquitted him and all other accused of these charges for lack of evidence. The applicant further stated that, upon the advice of his family and a local official, he had since 1992 been living in hiding in different places in Turkey under false identities, that of the persons who had been prosecuted together with him in 1992, five persons had been killed at some later point in time and that his brother I. had disappeared and is presumed dead. He stated that he had left Turkey upon the advice of his family, who told him that the police regularly visit them and are looking for him.        On 25 July 1995, the State Secretary for Justice (Staatssecretaris van Justitie) rejected the applicant's requests. As regards the applicant's request for asylum, the State Secretary considered that it had not been established that the applicant had substantial grounds to fear persecution in Turkey. The State Secretary considered in this respect that, apart from the five times in 1992 when the applicant had been arrested and detained for a certain period of time without any further consequences and the criminal proceedings against him which had in fact ended in an acquittal, the applicant had since then not encountered any problems with the authorities.        As regards his request for a residence permit, the State Secretary recalled that under Article 11 para. 5 of the Aliens Act (Vreemdelingenwet) a residence permit can be refused on grounds of public interest, since the Dutch authorities in applying Article 11 para. 5 of the Aliens Act follow a restrictive immigration policy in view of the population and employment situation in the Netherlands. As the applicant's presence in the Netherlands could not be regarded as serving any specific Dutch interests and as no compelling humanitarian reasons were found to exist on the basis of which a residence permit could be issued, the State Secretary of Justice considered that the applicant did not satisfy the criteria for the issuing of a residence permit.        On 23 August 1995, the applicant filed an objection (bezwaarschrift) against this decision with the State Secretary. In support of his objection, the applicant stated that in his political activities he had always strongly supported the interests of the Kurdish people, that the HEP party had been declared illegal in 1993 and that, according to an official report (ambtsbericht) of the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) of 12 January 1995, criminal proceedings had been instituted against parliamentarians of that party. Referring to a letter of 20 January 1995 of Amnesty International setting out in a general way the persecution of members and supporters of the pro-Kurdish parties, the applicant argued that since he was known as a political activist, as a member of a known Kurdish family and as the brother of a prominent member of a prohibited party, his expulsion to Turkey would expose him to persecution on grounds of illegal political activities supporting the cause of the Kurdish people.        Pursuant to Article 32 of the Aliens Act, the State Secretary decided on 20 October 1995 that the applicant was not allowed to stay in the Netherlands pending any appeal proceedings instituted by him and ordered him to leave the Netherlands within two weeks.        On 30 October 1995, the applicant requested the President of the Aliens' Chamber (Vreemdelingenkamer) of the Regional Court (Arrondisse- mentsrechtbank) of The Hague to grant an interim measure (voorlopige voorziening) allowing him to await the outcome of the objection proceedings in the Netherlands.        Following a hearing held on 12 March 1996, the President of the Aliens' Chamber rejected the applicant's request for an interim measure on 19 March 1996. The President noted that the applicant had stated that he had only been politically active when this was legally possible, that he had been acquitted in 1992 and that in the period between the end of 1992 and his departure to the Netherlands in 1995, he had been able to live in Turkey. The President did not find it established that the Turkish authorities still considered the applicant as an important political opponent in whom they were actively interested.        Insofar as the applicant relied on Article 3 of the Convention, the President found no substantial grounds on the basis of which the existence of a genuine and personal risk of treatment contrary to this provision on his return to Turkey had to be assumed. The President further found that no compelling humanitarian reasons for granting the applicant a residence permit had become apparent.        Having reached this finding and as no other legal rules appeared to have been violated, the President concluded that the State Secretary's decision not to allow the applicant to remain in the Netherlands pending the outcome of the proceedings regarding the applicant's objection could not be regarded as unreasonable. As the applicant's objection did not stand a reasonable chance of success and as a further investigation was not held to be able to contribute to the examination of the applicant's case, the President, in pursuance of Article 33b of the Aliens Act, also decided the merits of the applicant's objection against the State Secretary's decision of 25 July 1995 and rejected it as ill-founded.        On 30 May 1996, the applicant requested the State Secretary of Justice to review (herziening) his request for asylum, or alternatively for a residence permit on humanitarian grounds. He emphasised that he had only been able to live in Turkey between 1992 and 1995 under false identities, that two of his brothers had also fled Turkey, that in 1994 his brother I. had been prosecuted on charges of illegal political activities related to the PKK and that it must be assumed that he had died given the fact that several obituaries had been published since. The applicant further requested not to be expelled pending the outcome of his request for a revision.        After having considered the applicant's arguments, the State Secretary of Justice rejected the revision request on 5 August 1996, finding no reasons for a revision of the previous rejection of the applicant's requests.        By letter of 23 August 1996, the State Secretary reminded the applicant that he had been ordered to leave the Netherlands on 20 October 1995.        On 26 August 1996, the applicant filed an objection against the decision of 5 August 1996. On the same day the applicant submitted a new request to the President of the Aliens' Chamber of the Regional Court of The Hague to grant an interim measure allowing him to await the outcome of the objection proceedings in the Netherlands.        Following a hearing held on 3 December 1996, the President of the Aliens' Chamber rejected the applicant's request for an interim measure on 19 December 1996. Insofar as the applicant argued that the President, in the decision of 19 March 1996, had committed errors in the assessment of the applicant's situation, it was held that this finding could not be reviewed in the present proceedings as Article 33(e) of the Aliens Act excluded an appeal against such decisions. The President further found that no new facts or circumstances had become apparent.        Referring to the previous decision of 19 March 1996, the President of the Aliens' Chamber held that there could be no reasonable doubt that there was no danger of persecution within the meaning of Article 15 para. 1 of the Aliens Act. No indication was found for the assumption that the objection of 26 August 1996 would stand a reasonable chance of success.        Having reached this finding and as no other legal rules appeared to have been violated, the President concluded that the State Secretary's decision not to allow the applicant to remain in the Netherlands pending the outcome of the proceedings regarding the applicant's objection could not be regarded as unreasonable. As the applicant's objection did not stand a reasonable chance of success and as a further investigation was not held to be able to contribute to the examination of the applicant's case, the President, in pursuance of Article 33b of the Aliens Act, also decided the merits of the applicant's objection of 26 August 1996 and rejected it as ill-founded.   COMPLAINT        The applicant complains that his expulsion to Turkey would expose him to a real risk of being subjected to treatment contrary to Article 3 of the Convention and could possibly result in his being killed without any due process of law and thus amount to a violation of Article 2 of the Convention and Protocol No. 6.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 August 1996 and registered on 24 September 1996.        On 25 February 1997 the Commission decided to communicate the applicant's complaint concerning Articles 2 and 3 of the Convention and Protocol No. 6 to the respondent Government and to declare the remainder of the application inadmissible.        On 18 April 1997 the Commission indicated to the respondent Government, pursuant to Rule 36 of the Commission's Rules of Procedure, that it was desirable not to expel the applicant pending the proceedings before the Commission. This indication was prolonged several times, most recently on 18 September 1997.        The Government's written observations were submitted on 6 May 1997.   The applicant replied on 21 July 1997.        On 19 September 1997 the Commission granted the applicant legal aid.     THE LAW        The applicant complains that his expulsion to Turkey would expose him to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention and could possibly result in his being killed without any due process of law and thus amount to a violation of Article 2 of the Convention and Protocol No. 6 (P6-2).        Article 3 (Art. 3) of the Convention provides:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        Article 2 (Art. 2) of the Convention reads as follows:        "1.    Everyone's right to life shall be protected by law.   No one      shall be deprived of his life intentionally save in the execution      of a sentence of a court following his conviction of a crime for      which this penalty is provided by law.        2.     Deprivation of life shall not be regarded as inflicted in      contravention of this Article when it results from the use of      force which is no more than absolutely necessary:              a.     in defence of any person from unlawful violence;              b.     in order to effect a lawful arrest or to prevent the      escape of a person lawfully detained;              c.     in action lawfully taken for the purpose of quelling      a riot or insurrection."        Protocol No. 6, insofar as relevant, provides:                              "Article 1 (P6-1)        The death penalty shall be abolished. No one shall be condemned      to such penalty or executed.                              Article 2 (P6-2)        A State may make provision in its law for the death penalty in      respect of acts committed in time of war or of imminent threat      of war; such penalty shall be applied only in the instances laid      down in the law and in accordance with its provisions...."        The Government submit that the current policy as regards expulsion of Turkish Kurd asylum seekers is based on the findings in an official Report (ambtsbericht) of the Ministry of Foreign Affairs of 2 July 1996 on the position of Kurds in Turkey. In this report the views of the United Nations High Commissioner for Refugees and Amnesty International on this topic have been taken into account. According to this official Report Turkish citizens who work for the Kurdish cause and are guilty, in the opinion of the central and local authorities, of separatist activities will often expose themselves to criminal prosecution proceedings. Persons in respect of whom there is no question of prosecution under the criminal law may remove themselves from any unwanted attention on the part of the authorities by settling elsewhere in Turkey. An asylum seeker must, therefore, argue convincingly that facts and circumstances exist in relation to him personally which justify his fear of persecution within the meaning of the Geneva Convention on the status of refugees.        The Government submit that the mere fact that the applicant belongs to the Kurdish minority in Turkey is not sufficient grounds to believe that he has reason to fear persecution. The Government further submit, although accepting that the applicant was politically active in the past, that it cannot be said that, if expelled to Turkey, the applicant would have reason to fear persecution or would run a real risk of treatment contrary to Article 3 (Art. 3) of the Convention. The fact that the applicant belongs to a family known to be politically active is not sufficient for assuming that he himself is held to be an opposition member. For the purposes of Article 3 (Art. 3), the personal circumstances of the applicant are relevant and these circumstances are not comparable to those of his brother I.        According to the Government, it has not been argued nor has it appeared that the applicant is currently wanted by the Turkish authorities. He was never officially a member of an illegal party and, at the time of his political activities, he only represented then legal parties. The Government consider it unlikely that the applicant would have been registered by the Turkish authorities as an important political opposition figure. The Government further emphasise that the applicant was acquitted of aiding and harbouring members of an illegal organisation and "commending" acts constituting criminal offences by judgment of 23 December 1992 and that it has neither been stated nor shown that he is currently, or will be in the future, the subject of a criminal investigation into these charges.        In this connection the Government consider it relevant that the applicant's wife and children never had problems with the Turkish authorities such as to indicate that the applicant was wanted on account of either his own activities or those of his brother.        According to the Government, the applicant has the option of taking refuge, if that should still be necessary, within his own country. The Government note that, after the events in 1992, the applicant lived in a number of places between 1992 and his departure for the Netherlands in 1995. During this time he had a normal life and his wife and children were able to join him without encountering any obstacles.        The Government conclude that there are no grounds for assuming that the applicant, if expelled, would run a real risk of treatment in violation of Article 3 (Art. 3) of the Convention.        The applicant submits that since 1992 he did not live in Istanbul without any problems. He lived there with false identity papers and at different addresses. The applicant further submits that in the meantime the authorities have traced his family in Istanbul and have questioned them about the applicant and his brothers R. and B., who like the applicant have applied for asylum in Europe. In the applicant's opinion it is clear that he is wanted by the authorities and that he has no alternative refuge possibilities in Turkey.        The applicant submits that, although there are no written documents to show that criminal proceedings against him are currently pending, this does not mean that he is under no criminal suspicion or that he is able to return to Turkey and live somewhere under his own identity.        The applicant argues that, according to Amnesty International and the United Nations High Commissioner for Refugees, there is no alternative refuge inside the country for persons who are suspected of having links with the PKK. These links will be assumed by the Turkish authorities in the applicant's case given his family ties with his brother I. who is referred to as the right-hand man of the PKK leader, the applicant's own activities for the HEP and his involvement in the Kurdish cause in the past within the framework of legal parties. The existence of suspicions against him are obvious, given the fact that he has been arrested and detained on several occasions in 1992.        The applicant further submits that his acquittal in 1992 does not mean that there are no longer any suspicions against him. In this connection, the applicant stresses that of the fifteen persons acquitted in 1992, four have been killed since - including his brother I. - and another one has been detained and severely ill-treated. He fears a similar fate.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits of the case.             M. de SALVIA                         S. TRECHSEL           Secretary                           President       to the Commission                    of the Commission