I.H. v. The Netherlands
|Publisher||Council of Europe: European Commission on Human Rights|
|Publication Date||10 May 1990|
|Citation / Document Symbol||16505/90|
|Cite as||I.H. v. The Netherlands, 16505/90 , Council of Europe: European Commission on Human Rights, 10 May 1990, available at: http://www.refworld.org/docid/3ae6b7444.html [accessed 19 May 2013]|
|Disclaimer||This 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.|
AS TO THE ADMISSIBILITY OF
Application No. 16505/90
against the Netherlands
The European Commission of Human Rights sitting in private on 10 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
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 25 April 1990 by I.H. against the Netherlands and registered on 25 April 1990 under file No. 16505/90;
Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;
Decides as follows:
The applicant is a Lebanese citizen born in 1958. He is at present residing in Alkmaar, the Netherlands. Before the Commission he is represented by Mr. Th. Spijkerboer, a lawyer practising in Zaandam.
The applicant left Beirut, Lebanon on 10 February 1990 by taxi. He arrived in Damascus, Syria, where he boarded an airplane bound for Bucharest, Romania. Via Zurich, Switzerland,he arrived in Amsterdam, on 11 February 1990. In Amsterdam he immediately requested asylum.
On 19 February 1990, he was interviewed by an official from the Ministry of Justice. As reasons for his asylum request he stated, inter alia, that due to the war situation in Lebanon he frequently had to close his shop. His shop was in a Hezbollah controlled quarter of Beirut whereas he lived in an Amal controlled quarter. He denied ever having been a member of a political party or militia. He or his family had never suffered any particular difficulties due to the conflict. He specifically stated that he had fled for economic reasons.
On 20 February 1990, the Deputy Minister of Justice rejected the applicant's request for asylum and also refused to grant him a residence permit.
The applicant's request of 26 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 Haarlem 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 in 1982 he had begun to work for the Amal-militia, with whom he sympathised. Initially he helped tending to wounded militia-men. Later, he worked in an office where identity and travel documents were fabricated. In 1985, he secretly began smuggling blank documents out for use by El-Fatah, the Palestinian organisation. In 1989, Amal asked him to participate in the fighting, which he refused. In January 1990 he was informed by an Amal leader that it had become known that he was also working for El Fatah. Fearing reprisals, he fled. He produced a letter in Arabic from the said Amal-leader dated 16 January 1990, which had been forwarded to him after his arrival in the Netherlands and supported his allegation. He claimed that he had not told this account of events initially because he had been told with great urgency, before leaving Lebanon, that he should not mention his political activities if he wanted to obtain asylum on humanitarian grounds in the Netherlands.
On 6 April 1990, the President of the Regional Court rejected the applicant's injunction request. The President stated, inter alia, that he would completely disregard the applicant's later statements. He found it entirely lacking in credibility that someone in such great danger, as the applicant now claimed to be, would not mention this when provided with an opportunity to explain his motives for seeking asylum.
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.
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 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 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 considers that, in view of the contradictory nature of the applicant's statements as made at his original interview in the Netherlands and as subsequently made in his appeals, serious doubt is cast on the credibility of his later accounts of his activities in Lebanon. In this respect the Commission notes that, in his first statement, the applicant specifically stated that he had left Lebanon for economic reasons and he made no indication whatsoever of any danger to himself.
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)