CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 janvier 1998

.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. 26336/95                       by Henny Leo ABOIKONIE and Georgette Fidelia READ                       against the Netherlands          The European Commission of Human Rights sitting in private on 12 January 1998, the following members being present:              Mr     S. TRECHSEL, President            MM     J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER            MM     H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  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 20 October 1994 by Henny Leo ABOIKONIE and Georgette Fidelia READ against the Netherlands and registered on 27 January 1995 under file No. 26336/95;        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      8 October 1996;        Having deliberated;        Decides as follows:   THE FACTS        The first applicant is a Surinamese citizen, born in 1955 and at present residing in Suriname. The second applicant is the first applicant's wife. She was born in 1955 and resides in Rotterdam. The application is also introduced on behalf of the couple's four minor children, Gregory, born in 1979, Furgill, born in 1985, Bjorn, born in 1990, and Morena, born in 1993. The children live with their mother in the Netherlands. The second applicant and the children have Dutch nationality. Before the Commission the applicants are represented by Mr. J.B.J.G.M. Schyns, a lawyer practising in Venlo, the Netherlands.        The facts of the case, as submitted by the parties, may be summarised as follows.        The first applicant entered the Netherlands in May 1987 and requested asylum, or alternatively a residence permit for reasons of a humanitarian nature, on 4 June 1987. He pointed out that he had worked from 1982 until 1985 for the security service of the Surinamese army. During a certain period he had been body-guard to a Lieutenant- Colonel, Mr B. In 1985 he had deserted and had joined Ronnie Brunswijk's Jungle Command. In April 1987 he had fled Suriname. He submitted that he feared persecution by the military under command of Bouterse.        The second applicant arrived in the Netherlands together with the two elder children in August 1987 and requested asylum or residence permits for reasons of a humanitarian nature in December of that year.        On 9 March 1990 the first applicant was convicted of drug offences by the Regional Court (Arrondissementsrechtbank) of Roermond and given a suspended sentence of three weeks' imprisonment and a fine of 400 Dutch guilders to be replaced by eight days' imprisonment in case of non-payment.        On 20 September 1990 the first applicant was convicted of attempted grievous bodily harm by the Regional Court of Roermond and sentenced to a suspended term of eight months' imprisonment.        On 5 October 1990 the State Secretary for Justice (Staatssecretaris van Justitie) rejected the requests of the first applicant. As regards the request for asylum, the State Secretary for Justice considered that it had not been established that the first applicant had substantial grounds to fear persecution by the Surinamese military. As regards his request for a residence permit, the State Secretary for Justice recalled that pursuant to Section 11 para. 5 of the Aliens Act (Vreemdelingenwet) the granting of a residence permit could be refused on grounds of public interest, whereas the Dutch authorities in applying Section 11 para. 5 of the Aliens Act followed a restrictive immigration policy in view of the population and employment situation in the Netherlands. The State Secretary furthermore considered that since the first applicant's presence in the Netherlands did not serve any specific Dutch interest, and since no compelling reasons of a humanitarian nature were considered to exist on the basis of which he could be granted a residence permit, the first applicant did not fulfil the conditions for obtaining a residence permit.            On 14 November 1990 the first applicant requested the State Secretary for Justice to review (herziening) this decision. In support of his request, the first applicant submitted a page from a book entitled "Wanted Terrorists". On this page his photograph was printed and his name was mentioned.        On 27 February 1991 the first applicant was convicted of drug offences by the Regional Court of Breda and sentenced to eighteen months' imprisonment.        The State Secretary for Justice did not decide on the first applicant's request for revision within the statutory period of three months, which under Netherlands law constituted an implied rejection of this request (fictieve weigering). Consequently, on 12 March 1991 the first applicant appealed to the Judicial Division (Afdeling Rechtspraak) of the Council of State (Raad van State).        On 10 March 1992 the first applicant was heard by the Advisory Committee for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken) in connection with his request for revision.        The Advisory Committee proposed to the State Secretary for Justice that the applicant's request for revision be rejected. The Advisory Committee found that the applicant's account was vague and contained inconsistencies which seriously affected his credibility. Furthermore, it took into account that the political situation in Suriname had improved. In this respect the Committee referred to the arrangements concerning the peace settlement which had been agreed between Bouterse and Brunswijk in March 1991.        On 13 April 1992 the first applicant was convicted of insubordination by the Regional Court of Roermond and sentenced to a fine of 250 Dutch guilders to be replaced by five days' imprisonment in case of non-payment.        In the proceedings before the Judicial Division the State Secretary for Justice referred to the opinion of the Advisory Committee and submitted that the first applicant was not a refugee. On 15 September 1993 the Judicial Division quashed the implied decision of the State Secretary on the first applicant's request for revision. The Judicial Division considered that the contested decision dated from before the changed political situation and that therefore these developments should not have been taken into account. Furthermore, the fact that the State Secretary for Justice had failed to undertake any investigation into the page of the book entitled "Wanted Terrorists" was considered to constitute negligence.        Meanwhile, on 25 August 1992, the State Secretary for Justice had granted the second applicant and the children a residence permit. On 22 October 1992, they obtained Dutch nationality.        On 10 November 1993 the first applicant was convicted of assault by the Regional Court Magistrate (politierechter) of Roermond and given a suspended sentence of one week's imprisonment.        As a result of the decision of the Judicial Division, the State Secretary for Justice had to decide anew on the first applicant's request for revision. On 14 December 1993 this request was rejected. The State Secretary referred to the opinion of the Advisory Committee on Aliens Affairs and, as regards Article 3 of the Convention, indicated that the political situation in Suriname had improved. As regards the page from the book or pamphlet entitled "Wanted Terrorists", the State Secretary noted that it had appeared from information from the Ministry for Foreign Affairs that it was not known whether, following the publication of the pamphlet in 1987, it had actually led to any person being arrested. Two people named on the list were being kept in detention at the time of the decision but their detention related to non-political offences. Insofar as the page or pamphlet had ever served as a basis for arrests, it was excluded that this was so at the present time. Since the present Government of Suriname had never considered the document as legally valid it had not deemed it necessary to withdraw it. The State Secretary further held that even if the expulsion of the first applicant constituted an interference with his rights under Article 8 para. 1 of the Convention this interference was justified under para. 2 of this provision in view of the fact that the first applicant had been convicted of several serious criminal offences. The State Secretary decided, furthermore, that the first applicant was not allowed to remain in the Netherlands pending any appeal proceedings to be instituted by him.        In December 1993 or January 1994 the first applicant was interviewed by a member of the Royal Military Constabulary (Koninklijke Marechaussee), and a customs officer. They informed the first applicant that they worked for the so called "COPA-team" (Colombia Paramaribo- team) whose task it was to investigate possible drug transactions between Suriname and the Netherlands Antilles. They asked the first applicant to supply information about Mr B., who had been arrested and convicted of drug transactions in Miami.        On 19 January 1994 the first applicant filed an appeal with the Administrative Law Division (Afdeling Bestuursrechtspraak), the successor of the Judicial Division, of the Council of State against the rejection of his request for revision.        On 27 January 1994 the first applicant, in interim injunction proceedings (kort geding), requested the President of the Regional Court of The Hague sitting at (nevenzittingsplaats) 's-Hertogenbosch to issue an injunction against the State in respect of his expulsion.        On 21 February 1994 the first and second applicants were married in Venlo, the Netherlands.        The President of the Regional Court denied the request for an injunction on 24 March 1994. Insofar as the first applicant had invoked Article 3 of the Convention, the President found no substantial grounds on the basis of which a genuine and personal risk of inhuman treatment in Suriname could be assumed to exist. As regards the complaint under Article 8 of the Convention, the President considered that, if there was family life and the personal interests of the applicant were weighed against the public interest, an interference with the rights under Article 8 para. 1 of the Convention would be justified under para. 2 of this provision as being necessary in a democratic society for the prevention of disorder or crime. The applicant filed an appeal against this judgment with the Court of Appeal (Gerechtshof) of The Hague.        On 10 May 1994 both applicants again requested the President of the Regional Court of The Hague sitting at 's-Hertogenbosch to issue an injunction against the State in respect of the imminent expulsion of the first applicant. In support of their request they submitted that the following new facts should be taken into account: (1) a press release dated 3 March 1994 had revealed that the State Secretary for Justice had allowed six other former members of the Jungle Command to remain in the Netherlands pending their appeal proceedings, and (2) the first applicant had learned that the information which he had supplied to the COPA-team in December 1993 or January 1994 had been used in preliminary judicial investigations initiated against several high ranking members of the Suriname military who were suspected of being involved in the transport of drugs.        The President declared the request of the first applicant inadmissible on 18 July 1994, considering that the applicant could not claim that the facts which he had submitted were relevant new facts. In the first place the President considered that since both the questioning by the COPA-team and the press release dated from before the interim injunction proceedings of 24 March 1994, he could have raised those matters there. Secondly, as the State Secretary for Justice had indicated that the information which the first applicant had given to the COPA-team was only of minor importance, the President found that there were no substantial grounds militating against the expulsion of the first applicant prior to the decision of the Court of Appeal. The request of the second applicant was rejected on the same grounds. An appeal against this decision to the Court of Appeal of The Hague is pending but enjoys no suspensive effect.        On 18 October 1994 the first applicant was placed in detention with a view to his expulsion (vreemdelingenbewaring). On 20 October 1994 he was expelled to Suriname.        On the same day the first applicant requested the President of the Regional Court of The Hague in interim injunction proceedings to order the State to enable his return to the Netherlands and, subsequently, to allow him to remain in the Netherlands pending the appeal proceedings on his requests for asylum or a residence permit. In support of this request the first applicant argued that the following relevant new facts and circumstances had occurred after the last interim injunction proceedings of 18 July 1994:   (1)   on 29 July 1994 an anonymous civil servant of the Surinamese Department of Foreign Affairs had told a Dutch journalist that the applicant would be dead within six months of his arrival in Suriname;   (2)   at a public political meeting Bouterse was said to have issued threats against the first applicant in connection with the fact that the first applicant had supplied the Dutch authorities with information concerning Mr B.;   (3)   on 17 October 1994 the Surinamese police had found the body of a Mr M. in the Brokopondo reservoir. He had suffered a broken neck. In the 1980's Mr M. had been a chief officer in Ronnie Brunswijk's Jungle Command and at a later date he had had connections with Dutch Military Intelligence. The first applicant submitted that his position was comparable to that of Mr M.;   (4)   applications had been sent to the European Commission of Human Rights and the National Ombudsman. On the morning of 20 October 1994 the Commission had informally requested the Netherlands Government not to expel the first applicant; and   (5)   in September 1994 members of the Dutch parliament had asked the State Secretary for Justice a number of questions about the expulsion of the first applicant.        The request for an interim injunction was declared inadmissible by the President of the Regional Court on 22 November 1994. The President considered that the facts adduced by the applicant had either not been substantiated or were not relevant. As regards (1), the President noted that the Surinamese Minister for Foreign Affairs had denied that any such comment had been made by one of his officials. In respect of (5), the President held that on 20 October 1994 there had been no concrete indications to the effect that Mr M. had been murdered and that the exact cause of death of Mr M. had still not been established at the date of the hearing, ie. on 15 November 1994. Moreover, the President did not agree with the first applicant that his situation was comparable to that of Mr M., who had had Dutch nationality and had gone to Suriname voluntarily. Contrary to the first applicant, it was assumed that Mr M. had been acting as an informer of the Dutch Military Intelligence Service for years. Also, Mr M. had held a position within the Jungle Command which was different from that of the first applicant who had not played a role of any significance within this organisation.        On 23 November 1995 the Court of Appeal of The Hague upheld the contested judgment that had been handed down in interim injunction proceedings on 24 March 1994 by the President of the Regional Court of The Hague sitting at 's-Hertogenbosch.        The appeal against the decision of the State Secretary for Justice of 14 December 1993 rejecting the first applicant's request for revision was examined by the Administrative Disputes Division on 4 April 1997 and rejected on 2 July 1997. In view of the peace accord concluded between Bouterse and Brunswijk in March 1991, the Division held that the first applicant had not substantiated his claim that at the time of the impugned decision he had had a well-founded fear of persecution because of his membership of the security service until 1985 or because of his involvement with the Jungle Command from 1985 until 1987. The Division further found that the State Secretary had not acted unreasonably when he, basing himself on information from the Ministry for Foreign Affairs, had deemed it unlikely that the page from the book "Wanted Terrorists" indicated that the first applicant was wanted by the Surinamese authorities. Moreover, it did not follow from the sole fact that the first applicant had been interviewed by members of the COPA-team that he should be considered a refugee. In this respect the Division noted that the first applicant had failed to give any indication - by requesting a confidential examination of his case, for example   - of the contents of these interviews.        As regards the first applicant's complaint under Article 8 of the Convention, the Division held that there had been no interference with the first applicant's rights under this provision since the impugned decision had not deprived him of a residence permit which entitled him to have family life in the Netherlands. The Division further found that there were no special facts or circumstances which imposed a positive obligation on the authorities to grant him a residence permit. In this respect the Division took account of the fact that the first applicant had been convicted of assault and drug offences.        In support of their application the applicants have submitted, inter alia, a draft report on this case, drawn up by the Judicial Commission on Civilian Rights of the European Parliament on 14 November 1994. They submit that the conclusion contained in this report, to the effect that the Government of the Netherlands have violated human rights, was unanimously adopted by the Judicial Commission during its meeting held from 31 January to 2 February 1995. The applicants further submit that other former members of the Jungle Command have been allowed to await the outcome of their asylum procedures in the Netherlands.        In their written observations, the Government have submitted in respect of the death of Mr M. that the official report, the death certificate and a statement by a close friend indicate that Mr M. died of exhaustion as he tried to swim to the bank after his boat had overturned during a fishing trip.     COMPLAINTS   1.    The applicants complain that the first applicant's expulsion to Suriname exposed him to a real risk of being subjected to treatment contrary to Article 3 of the Convention.   2.    The applicants also complain that the expulsion of the first applicant constituted an interference with their right to respect for their family and private life in contravention of Article 8 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 October 1994 and registered on 27 January 1995.        On 20 October 1994 the applicants requested the Commission to apply Rule 36 of the Commission's Rules of Procedure. On the same day, the Commission decided not to apply Rule 36.        On 5 July 1996 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 8 October 1996. The applicants did not avail themselves of the opportunity to submit observations in reply.     THE LAW   1.    The applicants allege that the expulsion of the first applicant to Suriname exposed him to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention. Article 3 (Art. 3) provides as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Government are of the opinion that, insofar as it can be assumed that the first applicant worked for the army security service and was involved in the Jungle Command, it cannot be said that he ran a real risk of inhuman treatment given his personal circumstances and relatively minor role, seen against the background of the situation in Suriname as a whole and the peace accord reached in 1991 between army commander Bouterse and Jungle Command leader Brunswijk.        The Government further argue that there was no evidence that Mr M., whose body had been found in a reservoir, had been murdered. They believe that there is no indication that people whose picture and name appeared on the document "Wanted Terrorists" have encountered problems because of their inclusion in that list. They also note that the Surinamese Minister for Foreign Affairs has denied that one of his officials made a comment concerning the threat to the first applicant's life. Moreover, the first applicant has proved unable to substantiate his claim that Bouterse openly threatened his life at a meeting of his party. The Government do not believe that the report drawn up by the European Parliament's Judicial Commission on Civilian Rights presents a balanced picture of the relevant facts and circumstances since it is clearly primarily based on information provided by the first applicant himself.        As regards the first applicant having acted as informer to the COPA-team, the Government submit that the public prosecutor under whose responsibility the interviews with the first applicant took place has confirmed that the first applicant's role had been minimal. The Government point out that the first applicant has not indicated, even in general terms, what information he is supposed to have passed on.        The Government deny that when a number of other former members of the Jungle Command were permitted to await the outcome of their asylum procedures in the Netherlands similar cases were treated differently. There were also two former members who, like the first applicant, were not allowed to remain in the Netherlands.        Finally, the Government stress that the utmost care was exercised in respect of the first applicant's expulsion. The Dutch embassy was informed and an investigation was instituted in Suriname into any circumstances that might make the expulsion inadvisable. In this process, consideration was also given to the views of the Surinamese human rights association Moiwana '86. It was concluded, however, that reprisals from the Surinamese Government could be ruled out.        The Commission recalls that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including Article 3 (Art. 3), to control the entry, residence and expulsion of aliens (cf. Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). Furthermore it must be noted that the right to political asylum is not contained in either the Convention or its Protocols. However, an expulsion decision may give rise to an issue under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he or she is to be expelled (op. cit., p. 34, para. 103). A mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of this provision (op. cit., p. 37, para. 111).        The Commission also recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3). An assessment of whether such a treatment is in breach of this provision must be a rigorous one in view of the absolute character of this Article (op. cit., p. 36, paras. 107 and 108).        The Commission has examined the applicants' submissions and the documents in support of their application. It considers that the evidence before it concerning the first applicant's background and the general situation in Suriname at the time of his expulsion does not establish that there were substantial grounds for believing that the first applicant would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention and that the Dutch authorities should thus have refrained from expelling him. In reaching this conclusion the Commission notes the following.        It appears that the first applicant's claims have been examined carefully and extensively on a number of occasions by the Dutch administration and judiciary. During these proceedings the first applicant has not, however, refuted the findings by the Dutch authorities concerning the page from the book called "Wanted Terrorists".   Similarly he has not contended before the Commission that the information obtained by the Dutch authorities about the death of Mr M. was incorrect. Moreover, the first applicant has not submitted any evidence from witnesses or otherwise of his claims that a Surinamese civil servant said that the first applicant would be dead within six months of his arrival in Suriname, and that Bouterse issued threats against him at a public political meeting. He has, furthermore, failed to give any indication of the relevance of the information he is supposed to have passed on to the COPA-team.        In these circumstances the Commission considers that the first applicant has not substantiated his claims that his expulsion to Suriname would be contrary to Article 3 (Art. 3) of the Convention either because of his involvement with the Jungle Command or because of his having passed on information to the COPA-team.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicants further complain that the expulsion of the first applicant constituted an interference with their right to respect for their family and private life in contravention of Article 8 (Art. 8) of the Convention. Article 8 (Art. 8), insofar as relevant, reads as follows:        "1.    Everyone has the right to respect for his private and      family life ...        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Government submit in the first place that there has been no interference with the applicants' right to respect for family or private life since the first applicant had never been granted any residence rights in the Netherlands which had allowed him to enjoy family life there in the first place. They further argue that they were under no positive obligation to grant the first applicant a residence permit in order to enable him to enjoy family life in the Netherlands. In this respect they refer to the fact that the first applicant has been convicted of public order offences on a number of occasions. In the Government's submission, the first applicant's interests in prolonging family life in the Netherlands do not outweigh the interests of the State in maintaining public order. In carrying out this balancing exercise the Government have taken into account the ties which the first and second applicants may still be assumed to have with Suriname.        Even supposing there was an interference, the Government submit that the expulsion was justified under the second paragraph of Article 8 (Art. 8).        The Commission recalls its established case-law which holds that while Article 8 (Art. 8) of the Convention does not in itself guarantee a right to enter or remain in a particular country, issues may arise where a person is excluded, or removed from a country where his close relatives reside or have the right to reside (see eg. No. 7816/77, Dec. 19.5.77, D.R. 9, p. 219; No. 9088/80, Dec. 6.3.82, D.R. 28, p. 160; and No. 9285/81, Dec. 8.7.82, D.R. 29, p. 205).        However, the Commission notes that the State's obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole (Eur. Court HR, Gül v. Switzerland judgment of 19 February 1996, Reports 1996-I, No. 3, p. 175, para. 38). The Court has held that Article 8 (Art. 8) does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Eur. Court HR, Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 94, para. 68).        The Commission considers that it need not decide whether the refusal by the Dutch authorities to grant the first applicant a residence permit constituted an interference with the applicants' right to respect for their family or private life in the present case, since such an interference would in any event be justified under para. 2 of Article 8 (Art. 8-2).        In this respect the Commission observes that in view of the criminal offences committed by the first applicant, the Dutch authorities could reasonably have come to the conclusion that the interests of the State in maintaining public order outweighed the interests of the applicants in being able to enjoy family life in the Netherlands. After all, it does not follow from the fact that the second applicant and the children have (acquired) Dutch nationality that the only way for them to enjoy family life with the first applicant would be for the Dutch authorities to grant the first applicant residence in the Netherlands. In this respect the Commission recalls that in previous cases the factor of citizenship has not been considered of particular significance (eg. No. 11970/86, Dec. 13.7.87, unpublished, where the Commission found it compatible with Article 8 (Art. 8) to expect children of unlawful overstayers to follow their parents even if they had acquired rights of abode in the deporting country; and Nos. 23938/94 and 24865/94, Dec. of 23.10.95, unpublished, where the Commission found no material distinction as to whether the children had acquired citizenship by ius soli or ius sanguinis).        As regards the second applicant and the children, the Commission notes that there are no obstacles effectively preventing them from joining the first applicant and establishing their family life in Suriname. In this respect the Commission observes that the second applicant and the two elder children are of Surinamese origin and had lived in Suriname all their lives before coming to the Netherlands in 1987. The Commission further notes that the two younger children are of an adaptable age.        Accordingly, the Commission finds that the expulsion of the first applicant does not disclose a violation of Article 8 (Art. 8) of the Convention.        It follows that also this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.           M. de SALVIA                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission