H. v. Netherlands



AS TO THE ADMISSIBILITY OF

Application No. 16505/90

by I.H.

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

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 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;

Having deliberated;

Decides as follows:

THE FACTS

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.

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 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)