The European Commission of Human Rights sitting in private on
5 March 1986, the following members being present:
MM C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 January 1984 by
A.H. against the Netherlands and registered on 3 February 1984
under file No. 10798/84;
Having regard to:
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 4 March 1985 to bring the
application to the notice of the respondent Government and invite them
to submit written observationson its admissibility and merits;
- the observations submitted by the respondent Government on
13 May 1985 and the observations in reply submitted by the applicant
on 11 July 1985;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the applicant,
may be summarised as follows.
The applicant, who claims to be stateless, was born in 1935 at Bogar
in Algeria. His present residence is unknown.
In the proceedings before the Commission, the applicant is represented
by Mr. L.C. Baars, a lawyer practising in Schiedam, the Netherlands.
It appears that the applicant took up residence in France in 1952, but
that he had to leave this country during the Algerian rebellion in
1958. After having first moved to the Federal Republic of Germany, he
returned to Algeria after that country had become independent.
After the political events in Algeria in 1965, the applicant went to
Portugal as a stowaway on board a ship to Lisbon. Apparently he had
no travel documents and did not report himself to the authorities.
The applicant worked at the Lisbon docks, and also as a sailor on a
Greek vessel, until 1969 when he left his ship in Venezuela to try to
obtain travel documents there.
On 17 February 1970, the applicant, after having spent about four
months in detention, was given an alien's passport and was expelled to
Madrid.
It appears that the applicant then signed on a ship registered in
Uruguay and sailed to Trinidad, where he spent some time in hospital.
During that period his Venezuelan alien's passport was renewed until
17 February 1976.
In February 1971 the applicant returned to Spain by airplane and,
afterwards, worked as a sailor on board various ships.
In July 1973 the applicant was paid off at Antwerp and went to
Rotterdam from there. He was, however, arrested shortly afterwards
and expelled to Belgium. From there, he returned to the Netherlands,
but was again arrested and this time expelled to Venezuela. He
arrived in Venezuela on or about 18 October 1974, but was sent back to
the Netherlands almost immediately.
In 1975, the applicant introduced a request to be admitted to the
Netherlands as a refugee, but his request was rejected on 2 July 1975
by the Deputy Minister of Justice since the Netherlands could not be
considered as the first country receiving the applicant and because
the applicant could not be considered to be a refugee in the sense of
the Geneva Convention relating to the Status of Refugees, nor were any
cogent reasons of a humanitarian nature found to exist on the basis of
which a residence permit could be granted.
In the following years, the applicant appears to have been expelled
from the Netherlands to Belgium well over twenty times. Each time,
however, he claims that he was either arrested by the Belgian
authorities and returned to the Netherlands or he decided to return to
the Netherlands on his own accord. The Government, however, dispute
that the applicant was ever returned to the Netherlands by the Belgian
authorities but submit that the applicant always went back of his own
free will.
Having been found in the Netherlands without identity papers the
applicant was fined on several occasions by the District Court judge
(Kantonrechter) of Rotterdam in 1981.
As a result of this, the Deputy Minister of Justice decided on 9 June
1982 to declare the applicant an undesired alien (ongewenst
vreemdeling).
The applicant did not appeal against this decision.
On the basis of the said declaration the applicant was then sentenced
by the Police Magistrate (Politierechter) to a prison sentence of four
months. After having served the sentence he was, again, expelled to
Belgium. It appears that in February 1983 he was sent back to the
Netherlands by the Belgian authorities, after having been detained for
half a month in Belgium.
On 13 April 1983 the applicant requested the Deputy Minister of
Justice to withdraw the declaration which had rendered him an
undesired alien.
However, on 8 August 1983, this request was rejected. According to the
Deputy Minister, the said declaration was given for an indefinite
period and when considering a request for withdrawal a balance had to
be struck between the general interest and the personal interest of
the alien concerned. The fact that the applicant was a stateless
person could not be decisive in this respect. The Deputy Minister, in
addition, referred to the restrictive Dutch immigration policy,
allowing for admission of aliens only if their presence served a real
Dutch interest or because of cogent reasons of a humanitarian nature,
but found that the applicant's case did not fall into either of these
categories.
On 7 September 1983, the applicant introduced a request for revision
of this decision, but was informed, by letter of 6 October 1983 from
the Deputy Minister of Justice, that his request could not be granted.
The letter stated that there could be no revision of a decision not to
withdraw a declaration of undesired alien, since such a decision did
not constitute a decree (beschikking).
The applicant appealed against this decision to the Council of State's
Division for Jurisdiction (Afdeling rechtspraak van de Raad van State)
on 3 November 1983 on the basis of both the Aliens Act and the
relevant administrative law.
After having again been ordered to leave the Netherlands, the
applicant initiated summary proceedings (kort geding) before the
President of the Regional Court (Arrondissementsrechtbank) of
Rotterdam, claiming that his proposed expulsion would be unlawful.
However, the President of the Regional Court dismissed the claim on 22
November 1983. The President noted, in regard to the applicant's
alleged statelessness, that the applicant had claimed, in an interview
with an official of the Ministry of Justice in 1975, to have Algerian
nationality but that he had since failed to obtain either French or
Algerian nationality papers.
In addition, the President considered that expulsion did not need to
be suspended until the applicant's admission to another country was
certain or the administrative proceedings had been concluded in the
Netherlands, as the positive outcome for the applicant of these
proceedings was far from certain. The President did not accept the
applicant's claim that he could not reasonably be held responsible for
not appealing against the decision to declare him an undesired alien,
as the Council of State's case-law indicated that failure to appeal in
time was not easily excusable. With regard to the applicant's
complaints under Articles 3 and 5 (Art. 3, (Art. 5) of the Convention,
the President found that the applicant himself had each time created
the risk of being expelled by returning illegally to the Netherlands
after every expulsion. Moreover, the President found that there were
no cogent reasons of a humanitarian nature which prevented the
applicant's expulsion or which would require that a residence permit
for the Netherlands be granted. Finally, the personal interest which
the applicant had in advocating his interests in the administrative
proceedings that he initiated could not, in view of the negligible
chance of these proceedings being successful, override the general
interest in expelling aliens who were not eligible for residence in
the Netherlands.
The applicant appealed against this decision on 5 December 1983 to the
Court of Appeal (Gerechtshof) of The Hague.
Meanwhile, having again been arrested, the applicant was sentenced by
the Police Magistrate to five months imprisonment on 29 August 1983.
Subsequently, he appealed against this decision to the Court of Appeal
(Gerechtshof) of The Hague.
The Court of Appeal quashed the judgment of the Police Magistrate on
1 May 1984, insofar as the applicant had received a prison sentence.
The Court held that no punishment or other measures should be applied
to the applicant as his being declared an undesired alien resulted
from lack of identity papers, for which the applicant could only be
blamed to a very limited extent.
On 31 June 1984, the applicant was given a "laissez-passer", issued by
the Ministry of Foreign Affairs, only valid for leaving the
Netherlands and for a limited period of three months, and was given
the possibility to be sent to either Algeria or Tunisia.
Upon his request, the applicant was sent to Morocco on 10 February
1984 but had to leave that country again within two hours, in the
direction of Spain. It seems that the applicant was permitted to
remain in Spain until the expiry date of his "laissez-passer"
(30 April 1984).
On 23 July 1984 the President of the Council of State's Division for
Jurisdiction, in two separate decisions, rejected the applicant's
complaints of 3 November 1983 as being inadmissible. The applicant
appealed against these decisions on 7 August 1984.
The applicant's appeal of 5 December 1983 was rejected by the Court of
Appeal of The Hague on 26 October 1984.
With regard to the applicant's claim to be a stateless person, the
Court considered that the applicant had failed to demonstrate that he
had attempted either to obtain an Algerian passport or to have his
citizenship confirmed. However, the Algerian authorities had never
indicated that they did not consider the applicant to be an Algerian
citizen. The Court found that it had not been sufficiently
demonstrated that the applicant was a stateless person.
The court further confirmed the decision of the President of the
Regional Court of Rotterdam of 22 November 1983.
COMPLAINTS
The applicant complains that the Netherlands authorities have failed
to recognise the consequences of the fact that he is a stateless
person. He considers that his repeated expulsions from the
Netherlands to countries where it is known that he will not be
admitted amount to inhuman treatment contrary to Article 3
(Art. 3 of the Convention.
The applicant, in addition, complains that he was detained in
police-cells for long periods of time, although such cells are only
suited for short-term occupation. He also invokes Article 3
(Art. 3) of the Convention in this respect.
The applicant further claims that since his position as a stateless
person has not been properly established, his repeated detentions are
contrary to Article 5 (Art. 5) of the Convention.
Proceedings before the Commission
The application was introduced on 30 January 1984 and registered
on 3 February 1984.
On 4 March 1985 the Commission decided, in accordance with Rule 42,
para. 2, sub-para. b of its Rules of Procedure to bring the
application to the notice of the respondent Government and to request
them to submit written observations on its admissibility and merits.
The Government's observations were submitted on 13 May 1985, the
applicant's observations in reply on 11 July 1985.
SUBMISSIONS OF THE PARTIES
A) The Government
a) Exhaustion of domestic remedies
The Netherlands Government take the view that the applicant has
exhausted all legal remedies in the Netherlands within the meaning of
Article 26 (Art. 26) of the Convention, since he was not permitted to
remain in the Netherlands until the result of the appeal lodged
against the judgment of the president of the Regional Court of
Rotterdam rejecting his claim in summary proceedings became known.
b) The facts
First, with regard to the alleged statelessness of the applicant, the
Netherlands authorities assume that he has Algerian nationality. At
the time of his birth, Algeria was not an independent state, but a
French colony. In the Evian Agreement of 19 March 1962 concerning the
independence of Algeria, decisions on matters of nationality were left
to Algerian legislation, on the grounds of which (Law. No. 70-86 of
15 December 1970) it is clear that the applicant must be considered to
be of Algerian nationality by descent (section 6). Such nationality
cannot be lost through long periods of absence from Algeria,
nationality can only be declared forfeited on such grounds where it
has been adopted after birth by someone not originally Algerian.
Second, it should be noted that the request for asylum submitted by
the applicant in 1975 was only made after he had been arrested for the
fourth time for being illegally resident in the Netherlands.
Furthermore, his request for asylum was rejected not only because the
Netherlands could not be considered the country to which the applicant
first appealed, but also because he could not be regarded as a refugee
within the meaning of the Geneva Convention relating to the Status of
Refugees of 28 July 1951. Nor were there any compelling reasons of a
humanitarian nature for granting him asylum. In addition, the
applicant did not ask for the decision rejecting his asylum request to
be reviewed.
Finally, the Netherlands Government are not aware of any information
to the effect that the applicant was compelled to return to the
Netherlands by the Belgian authorities. If this had happened,
article 9 of the Agreement between the Kingdom of the Netherlands, the
Kingdom of Belgium and the Grand Duchy of Luxembourg of 11 April 1960
concerning the removal of border controls on persons to the outer
boundaries of the Benelux territory, would have had to be applied. It
has never been demonstrated that the applicant was handed over by the
Belgian authorities and it must therefore be concluded that he always
returned to the Netherlands of his own free will.
c) The Law
The applicant states that the Netherlands authorities completely
ignored the fact that he is a stateless person and that his repeated
deportation from the Netherlands to countries where it was known that
he would not be admitted constitutes inhuman treatment within the
meaning of Article 3 (Art. 3) of the Convention. He also states that
the fact that he was punished purely because he did not have any
travel documents should be regarded as inhuman and degrading.
With regard to the alleged statelessness of the applicant, reference
is made to the reasons explained under b) above for the Netherlands
authorities' doubts on this point. Even if it were to be accepted
that he is a stateless person, this would make no difference from the
point of view of Netherlands policy on the admission of aliens and its
obligations in respect thereof under international law.
With regard to the deportation of the applicant from the Netherlands
the following should be noted. The Netherlands Government conduct a
restrictive admission policy with regard to aliens. This means that
aliens can only be admitted if they are eligible for admission on the
grounds of the Netherlands' international obligations or if there are
compelling humanitarian reasons for their admission or if the
interests of the Netherlands would be significantly served by their
admission.
The applicant is not entitled to a Netherlands residence permit on any
of the above grounds. In accordance with the Commission's established
case law an alien may not claim the right to residence in another
country under the provisions of the Convention. In respect of the
applicant's assertion that his repeated deportation from the
Netherlands constitutes inhuman treatment within the meaning of
Article 3 (Art. 3) of the Convention the Netherlands Government would
observe that the Commission defined the term "inhuman treatment" in
the Greek case (Yearbook XII, p. 186) as "such treatment as
deliberately causes severe suffering, mental or physical, which in the
particular situation is unjustifiable".
The Netherlands Government are of the opinion that it cannot
reasonably be assumed that the deportation of the applicant from the
Netherlands constituted such treatment. The deportation of aliens who
are not permitted to reside in a particular country is a logical
consequence of an aliens admission policy and of the rejection of an
application for a residence permit.
Aliens who wish to be granted permission to reside in a country and
who must therefore meet the relevant criteria, cannot reasonably
describe the withholding of that permission because they do not meet
the relevant criteria, and, where appropriate, their consequent
deportation, as treatment deliberately designed to cause suffering and
therefore in conflict with Article 3 (Art. 3) of the Convention.
In so far as the applicant experienced his repeated deportation from
the Netherlands as suffering, he must be considered to have himself
been responsible for that suffering, since he continued to return to
the Netherlands after each deportation in contravention of the
provisions of the Netherlands Aliens Act, despite knowing that he was
not permitted to reside in the Netherlands and that he had indeed been
prohibited from entering the country after being declared persona non
grata.
It should also be pointed out in this connection that the Netherlands
authorities have already offered the applicant the opportunity of
travelling to his country of origin or another country of his choice
using a Netherlands laissez-passer. Furthermore, it is not clear why
the applicant, who according to his own statements was born on
12 July 1935 in Bogar, Algeria, could not obtain identity papers
himself from the Algerian authorities, if necessary after his Algerian
nationality had been confirmed under the terms of the relevant
legislation.
With regard to the second element of the alleged violation of
Article 3 (Art. 3), namely that punishment on account of not being in
the possession of travel documents should be regarded as inhuman and
degrading, the Netherlands Government would make reference to the
Court's judgment in the Tyrer case (Eur. Court HR series A, No. 25,
p. 15) which includes the following statement: "It would be absurd to
hold that judicial punishment generally, by reason of its usual and
perhaps almost inevitable element of humiliation, is "degrading"
within the meaning of Article 3 (Art. 3). Some further criterion must
be read into the text. Indeed, Article 3 (Art. 3), by expressly
prohibiting "inhuman" and "degrading" punishment, implies that there
is a distinction between such punishment and punishment in general. In
the Court's view, in order for a punishment to be "degrading" and in
breach of Article 3 (Art. 3), the humiliation or debasement involved
must attain a particular level and must in any event be other than
that usual element of humiliation referred to in the preceding
sub-para. The assessment is, in the nature of things, relative: it
depends on all the circumstances of the case and, in particular, on
the nature and context of the punishment itself and in the manner and
method of its execution."
In the case of Campbell and Cosans (Eur. Court HR Series A, No. 48,
pp. 12-13) the Court concludes the following from the precedent of the
Tyrer case: "Nevertheless, it follows from that judgment that
"treatment" itself will not be "degrading" unless the person has
undergone - either in the eyes of others or in his own eyes -
humiliation or debasement attaining a minimum element of severity."
Under the provisions of the Netherlands Aliens Decree of 19 September
1966 (Netherlands Bulletin of Acts, Orders and Decrees 387) aliens are
obliged to carry with them documents showing their identity and to
show these upon request to any official with responsibility for border
control or the supervision of aliens. Under section 44 of the
Netherlands Aliens Act of 13 January 1965 (Netherlands Bulletin of
Acts, Orders and Decrees 40) failure to comply with these requirements
is an offence liable to a term of imprisonment not exceeding 6 months
or a fine not exceeding one thousand guilders.
Furthermore, under section 197 of the Netherlands Criminal Code it is
prohibited for aliens who know or have good reason to suspect that
they have been declared personae non gratae under the terms of
statutory provisions to reside in the Netherlands. Infringement of
this prohibition is liable to a prison sentence not exceeding
6 months. When he was handed the decree declaring him persona non
grata, the applicant was also given a leaflet explaining what that
meant in Arabic.
With regard to the punishment of the applicant, the Netherlands
Government would point out that this was based on Netherlands law and
that any element of debasement which it may have involved could in no
way be described as being of the severity referred to by the Court in
the Campbell and Cosans case.
The Netherlands Government therefore believe that this part of the
complaint must be regarded as manifestly ill-founded within the
meaning of Article 27, para. 2 (Art. 27-2) of the Convention.
Article 5 (Art. 5)
With regard to the assertions in the complaint concerning the alleged
violation of Article 5 (Art. 5) of the Convention, the Netherlands
Government would make the following observations.
The Netherlands Government understand that the applicant believes that
his repeated detention was in conflict with the provisions of
Article 5 (Art. 5) of the Convention because his statelessness had not
been properly established, and are of the opinion that whether or not
his statelessness was properly established has no bearing on the
applicability of the provisions of Article 5 (Art. 5) of the
Convention since statelessness is not relevant to that article.
Insofar as the applicant was deprived of his liberty in the
Netherlands, this always occurred in accordance with one of the
provisions of Article 5, para. 1 (Art. 5-1) of the Convention.
To be more specific, on each occasion that the applicant was detained,
the action was either in accordance with Article 5, para. 1(a)
(Art. 5-1-a) i.e. after being convicted of contravening article 197 of
the Netherlands Criminal Code, or in accordance with Article 5,
para. 1(f) (Art. 5-1-f) i.e. on account of his having been remanded in
custody under section 26 of the Netherlands Aliens Act with a view to
deportation.
Furthermore, each time that the applicant was placed in detention, the
procedural regulations laid down in Article 5, paras. 2, 3 and 4
(Art. 5-2, (Art. 5-3, (Art. 5-4) of the Convention were followed where
relevant and it can therefore be assumed that he was always deprived
of his liberty in accordance with the provisions of Article 5 (Art. 5)
of the Convention.
The Netherlands Government are therefore of the opinion that this part
of the complaint must also be regarded as manifestly ill-founded
within the meaning of Article 27, para. 2 (Art. 27-2) of the Convention.
B) The applicant
The applicant submits as follows with regard to the Government's claim
that he has Algerian nationality.
The applicant and several governments, including the Netherlands
Government, have repeatedly enquired after his nationality with the
Algerian authorities but the latter have failed to react over the past
twenty years.
Moreover, when the applicant entered the Netherlands for the first
time, he was in possession of a valid alien's passport which was,
however, withdrawn by the Venezuelan authorities after the applicant
had been deported to that country.
Furthermore, the applicant observes that although he was expelled from
the Netherlands 25 times, he was never directly sent to Algeria.
The applicant notes that both the Netherlands and Algeria are parties
to the Convention Relating to the Status of Stateless Persons, and
would therefore have been expected to establish the alleged
nationality of an individual.
The applicant submits that he has never obstructed any attempts to
establish his nationality.
With regard to the Government's claim that he always returned to the
Netherlands of his own accord and was never handed over by the Belgian
authorities, the applicant observes that the Netherlands authorities
themselves never handed him over to Belgium on the basis of the
Benelux agreement referred to.
The applicant submits that he did not have the intention to settle in
the Netherlands at the time but that he was unable to continue his
work as a sailor because his alien's passport had been withdrawn by
the Venezuelan authorities. Had he been provided with a passport for
stateless persons or an alien's passport, he would have left the
Netherlands. However he was forced to try and settle down in the
Netherlands, having been declared an undesired alien in the Federal
Republic of Germany, France and Belgium. For this reason, it was only
after some time that he invoked his status as a refugee.
THE LAW
1. The applicant has complained that his repeated expulsions from
the Netherlands to countries where it is known that he will not be
admitted constituted inhuman treatment contrary to Article 3 (Art. 3)
of the Convention which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission recalls that, according to its constant case-law, no
right of an alien to reside in a particular country, or not to be
expelled from a particular country, is as such guaranteed by the
Convention (cf. eg Dec. No. 7729/76, 17.12.76, DR 7, p. 164 ff).
However, the Commission has also held that the repeated expulsion of
an individual, whose identity was impossible to establish, to a
country where his admission is not guaranteed, may raise an issue
under Article 3 (Art. 3) of the Convention (cf. Giama v. Belgium,
Comm. Report 17.7.80). Such an issue may arise, a fortiori, if an
alien is over a long period of time deported repeatedly from one
country to another without any country taking measures to regularise
his situation.
The Commission observes, however, that the applicant after having been
expelled to Belgium from the Netherlands in most, if not all cases,
appears to have returned to the latter country of his own free will.
The applicant has not demonstrated that he was ever expelled from
Belgium to the Netherlands.
Furthermore, the Commission notes that the applicant has not submitted
any evidence that he ever attempted to have his alleged Algerian
nationality recognised by the Algerian authorities, nor are there any
indications that the applicant would not have been admitted to Algeria
had he decided to go to that country.
In this respect the Commission also notes that the applicant has not
given any reasons why on the occasion of his last expulsion from the
Netherlands he did not return to Algeria, although this was made
possible by the Netherlands authorities, but decided to go to Morocco
instead.
Under these circumstances the Commission is of the opinion that,
although the Netherlands authorities do not appear to have been very
active in trying to assist in finding a solution to the applicant's
problems, the applicant himself was primarily responsible for the
situation he complains of.
It follows that this part of the application must be rejected as
manifestly ill-founded within the meaning of Article 27, para. 2
(Art. 27-2) of the Convention.
The applicant has also complained that he was detained in police cells
for long periods of time and he has also invoked Article 3 (Art. 3)
of the Convention in this respect.
However, the Commission notes that the applicant failed to submit any
evidence to support his allegations concerning the conditions of his
detention and it follows that his complaints in this respect must also
be regarded as manifestly ill-founded within the meaning of
Article 27, para. 2 (Art. 27-2) of the Convention.
The applicant has further complained that since his status as a
stateless person had not been properly established, his detention on
various occasions was contrary to Article 5 (Art. 5) of the
Convention, which provides, inter alia that "Everyone has the right to
liberty and security of person ...".
However, the Commission finds that the applicant was lawfully detained
in accordance with the provisions of Article 5, para. 1, sub- para. f
(Art. 5-1-f) of the Convention as "...a person against whom action is
being taken with a view to deportation...".
Consequently, the remainder of the application must also be rejected
as 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)
HARABI v. THE NETHERLANDS