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S.S. v. The Netherlands

Publisher Council of Europe: European Commission on Human Rights
Publication Date 10 May 1990
Citation / Document Symbol 16454/90
Cite as S.S. v. The Netherlands, 16454/90, Council of Europe: European Commission on Human Rights, 10 May 1990, available at: http://www.refworld.org/docid/3ae6b6f44.html [accessed 18 September 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

The European Commission of Human Rights sitting in private on 10 May 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir  Basil HALL

Mr. F. MARTINEZ

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 18 April 1990 by S.S. against the Netherlands and registered on 18 April 1990 under file No. 16454/90;

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 Lebanese citizen born in 1962.  He is at present residing in Hoogezand, the Netherlands.  In the procedure before the Commission he is represented by Mr. Th. Spijkerboer, a lawyer practising in Zaandam.

The applicant left Beirut, Lebanon on 11 November 1989 by taxi.  He arrived in Damascus, Syria, where he boarded an airplane bound for Amman, Jordan.  Via Rome, Italy, he arrived in Amsterdam, on 12 November 1989.  In Amsterdam he immediately requested asylum.

On 16 November 1989 he was interviewed by an official from the Ministry of Justice. As reasons for his asylum request he stated, inter alia, that he feared being caught by the Hezbollah-militia because he had fought against them in 1983 in Tripoli, Lebanon. He stated that he had joined the Baath party in 1982 in order to get work.  He was trained as a militia-man and participated in the fighting until he fled to Beirut in 1983.  In the last fight in which he was involved he had been grazed by a bullet above his eye, and in a subsequent road accident in the ambulance, he lost two fingers and suffered damage to his ribs.  In 1983 his father was killed in a bomb-attack on his shop by the Tawheed-militia who were apparently looking for the applicant.  In 1984 he began to work as a chauffeur for a wealthy Christian family.  This family fled Beirut in 1989, leaving the applicant with no work.  He has not had contact with militias since 1983.

On 14 December 1989, the Deputy Minister of Justice rejected the applicant's asylum request and also refused to grant him a residence permit.

The applicant's request of 6 February 1990 for a review of this decision was apparently denied suspensive effect for his deportation.  He, therefore, with the assistance of counsel, instituted summary proceedings (kort geding) with the President of the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbasch demanding the right to remain in the Netherlands pending his appeals on his asylum request.

In his request for review and in his summary proceedings he stated, inter alia, that he had been arrested and detained by Hezbollah in 1983 for several months.  He submitted that his deportation to Lebanon would be contrary to Article 3 of the Convention.

On 18 April 1990, the President of the Regional Court rejected the injunction request. The President stated, inter alia, that he doubted the veracity of the alleged detention. Furthermore, the applicant's alleged activities for a militia dated from 1983 and there was no indication why he should fear persecution now, where in the intervening 6 years he had no difficulties. As to Article 3 of the Convention, the President stated that the individual circumstances of the applicant's case could not lead to the conclusion that he faced a "real risk" of treatment contrary to this Article if returned to Lebanon.

COMPLAINTS

The applicant complains that if deported to Lebanon he faces a real risk of suffering treatment contrary to Article 3 of the Convention by:

a.   becoming the victim of random violence;

b.   being forced to participate in the fighting;

c.   being subjected to reprisals for trying to avoid induction

into a militia;

d.   being subjected to ill-treatment at the hands of rival

militias.

Furthermore, the applicant submits that what is of primary importance in assessing this risk is what happened to him in Lebanon, and not what he told the officials of the Ministry of Justice when interviewed on his asylum request.  In this respect, the applicant points out that at these interviews he does not have recourse to legal assistance, his statements are first interpreted into Dutch and then into a written form, and there is no way of subsequently checking what he did or did not say as there is no audio recording of the interview.

THE LAW

The applicant complains that if deported to Lebanon he faces a real risk of suffering inhuman or degrading treatment at the hands of militias or in the course of the general civil war situation, either as an innocent bystander or through being coerced into participating in the fighting.  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's original statements to officials of the Ministry of Justice referred to the general situation in Lebanon.  Subsequent to the refusal of asylum, he revised his story to include specific details of personal and family difficulties caused by militias or the war situation.

In his appeal in summary proceedings the applicant also relied on Article 3 (Art. 3) of the Convention. The Commission notes that the President of the Regional Court examined this argument, also in the light of the aforementioned Soering judgment, and considered that it could not be concluded that there was a "real risk" of the applicant being exposed to treatment referred to in Article 3 (Art. 3) of the Convention, if returned to Lebanon.

Furthermore, the Commission notes that, according to his own statements, the applicant has not been involved in the conflict in Lebanon since 1983.  He has had no problems in the subsequent six years, and apparently left after his employer left Lebanon.

In these circumstances the Commission considers that the grounds which the applicant presents in support of his complaint are not sufficient to substantiate he 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 Lebanon.

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER)                           (C.A. NØRGAARD)

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