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)