CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 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. 32037/96                       by Shakil AMED                       against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 10 September 1997, the following members being present:              Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 1 April 1996 by Shakil AMED against the Netherlands and registered on 26 June 1996 under file No. 32037/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:THE FACTS        The applicant is a national of Pakistan, born in 1966, and has been expelled from the Netherlands to Pakistan on 6 July 1994. His present whereabouts are unknown. He is represented by Mr F.W. King, a legal adviser working in Leiden, the Netherlands.        The facts of the case, as submitted by the applicant, may be summarised as follows.        When boarding a ferry in the Netherlands bound for the United Kingdom on 10 June 1994, the applicant was found to carry a forged French passport. He was arrested and detained on remand. He was subsequently detained under the Aliens Act (Vreemdelingenwet) with a view to his expulsion from the Netherlands. Upon his arrest the applicant stated that he had obtained the passport from his uncle, who was living in London and who would be awaiting him at Harwich. He further stated that this uncle had promised him work.        When questioned further by the police on 13 June 1994, the applicant stated that he was a Pakistani national, born in 1966, and that he had come to the Netherlands with a forged passport in order to travel to family in the United Kingdom. He further stated that his authentic papers were in Pakistan and that he wished to return to his mother in Pakistan as soon as possible.        On 20 June 1994, the applicant filed a request for asylum or, alternatively, a residence permit on humanitarian grounds. When heard on this request on 22 June 1994, the applicant stated, inter alia, that he did hold a valid Pakistani passport and identity card, but that these documents were still in Pakistan with his mother. He indicated his mother's address and stated that he had lived with her until his departure from Pakistan. He also declared tht he had two brothers and five sisters in Pakistan. He had left Pakistan for fear of his life as the leader of the ruling Pakistan People Party (PPP) wanted to kill him for being a member of the Muhajir Qoumi Movement (MQM), a political organisation striving for the independence of the city of Karachi within Pakistan.        He stated that the MQM leader had been granted asylum in the United Kingdom and that the authorities of Pakistan were actively persecuting the MQM and had summarily executed a number of its members recently, including a friend of the applicant who was killed in April 1994. He stated that he had stopped his activities for the MQM in 1992 in view of the rising power of the PPP and that he had received threats.        He further stated that he had bought the forged French passport in Karachi. When confronted with the discrepancies between his asylum statement and earlier statement to the police, the applicant replied he was absent-minded and had lied. He had not applied for asylum earlier because his legal adviser had not informed him of this possibility.        The Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant's request for asylum and a residence permit on 24 June 1994 as ill-founded. It was further decided that an appeal against this decision would not have any suspensive effect as to the applicant's expulsion. This decision was served on the applicant on 27 June 1994. The applicant filed an appeal with the Regional Court (Arrondissementsrechtbank) of The Hague on 5 July 1994.        The applicant was expelled on 6 July 1994 to Pakistan. Since that date neither the applicant's representative nor the applicant's family residing in the Netherlands have heard from him.        On 2 February 1996, the Regional Court rejected the applicant's appeal as ill-founded. Insofar as the applicant had alleged that his expulsion was contrary to Article 3 of the Convention, the Regional Court doubted the veracity of the applicant's account. Even assuming it was correct, the Regional Court noted that the applicant had ceased his activities for the MQM already in 1992 and had remained in Pakistan until 9 June 1994 without having encountered any problems from the side of the authorities. It further found the applicant's reasons for his fear to have remained unsubstantiated. The information submitted was considered too general to allow any conclusions to be drawn as to the applicant's personal situation. In these circumstances, the Regional Court did not find it established that the applicant would be subjected to treatment contrary to Article 3 of the Convention in Pakistan.     COMPLAINTS        The applicant complains that his expulsion to Pakistan was contrary to Article 3 of the Convention. It is further submitted that since the applicant's expulsion neither the applicant's representative nor the applicant's family residing in the Netherlands have heard from him and that it must, therefore, be assumed that the applicant has been killed upon his return to Pakistan.     THE LAW        The applicant complains that his expulsion to Pakistan was contrary to Article 3 (Art. 3) of the Convention.        Article 3 (Art. 3) of the Convention provides as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission observes that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including those under Article 3 (Art. 3) of the Convention, to control the entry, residence and expulsion of aliens.        Furthermore it must be noted that the right to political asylum is not protected in either the Convention or its Protocols. However, an expulsion decision may give rise to an issue under Article 3 (Art. 3), and hence engage the responsibility of a State 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 was to be expelled. A mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of this provision (cf. Eur. Court HR, Vilvarajah and Others v. United Kingdom judgment, ibid., p. 34, para. 103, and 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) (cf. No. 27776/95, Dec. 26.10.1995, D.R. 83, p. 101). 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 (cf. Eur. Court HR, Chahal v. United Kingdom judgment, ibid., para. 96).        The Commission has examined the applicant's submissions and the documents in support of his application. The Commission notes that the applicant's activities for the MQM gave him no cause to flee Pakistan immediately, but only after two years.        The Commission further notes that the applicant's allegations as regards his membership and activities for the MQM and the alleged threats have remained unsubstantiated in the proceedings in the Netherlands. The Commission cannot, therefore, find the national authorities' findings as regards the risk that the applicant would be exposed to treatment contrary to Article 3 (Art. 3) of the Convention unreasonable.        Insofar as it has been suggested that the applicant has probably been killed upon his return to Pakistan, the Commission notes from the applicant's submissions that his mother, five sisters and two brothers live in Pakistan and that he has family members residing in the Netherlands. The Commission does not find it established that it was impossible for the applicant's representative to establish contacts with the applicant's family in order to obtain information about the applicant's fate.        In these circumstances, the Commission is of the opinion that it has not been established that the applicant was exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention when he was returned to Pakistan.        It follows 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, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber