Slepcik v. The Netherlands

APPLICATION Nº 30913/96
Dezider, Anna, Angelika, Dezider jr., Milan and Miroslav SLEPCIK v/the NETHERLANDS
DECISION of 2 September 1996 on the admissibility of the application

Article 3 of the Convention:Expulsion of a person may raise an issue under Article 3, and hence engage the responsibility of a State, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to treatment contrary to Article 3 in the country to which he is to be expelled. However, a mere possibility of ill-treatment is not in itself sufficient to give rise to a breach of Article 3.

Alleged risk of persecution of gypsies if expelled to the Czech Republic: insufficient substantiation of such a risk or of lack of protection against harassment.

Article 6, paragraph I of the Convention: Not applicable to proceedings concerning the granting of political asylum.

Article 14 of the Convention: Article 14 complements the other substantive provisions of the Convention and Protocols, and although its application does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter

Article 26 of the Convention: Complaint that Czech citizenship cannot be acquired automatically following dissolution of the Czech and Slovak Republic: even assuming an issue could arise under Articles 3 and 14 of the Convention the applicants, by failing to reply to an invitation to opt for Czech citizenship within the time limit, did not exhaust domestic remedies.

Competence ratione materiae: The Convention does not guarantee, as such, a right to acquire a particular nationality.

THE FACTS

The applicants, born in 1955, 1956, 1973, 1975, 1974 and 1978 respectively, are husband and wife and their four children of whom one is a minor. They are Roma gypsies and came from Pardubice (Czech Republic). Currently the applicants reside in the Netherlands.

A.Particular circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1.Asylum proceedings

On 19 August 1992 the applicants requested asylum or, alternatively, residence permits for humanitarian reasons in the Netherlands. They alleged that they had been the victims of persecution by "skinheads" and that the Czech authorities were unable or unwilling to offer them protection.

On 15 September 1992 their requests were rejected. On 3 November 1992 the applicants voluntarily withdrew their requests and went home.

On 4 May 1993 the applicants returned to the Netherlands and again requested asylum and residence permits for humanitarian reasons, submitting the same grounds as in August 1992.

The applicants' requests were rejected by the State Secretary for Justice (Staatssecretaris van Justitie) on 5 July 1993. No suspensive effect was granted to their requests for revision (herziening).

On 1 December 1994 the President of the Regional Court (Arrondissements-rechtbank) of The Hague granted an interim measure to the effect that the applicants were allowed to await the outcome of the revision proceedings in the Netherlands. However, the State filed an appeal against the President's decision and on 25 January 1996 the Court of Appeal (Gerechtshof) of The Hague quashed this decision.

The Court of Appeal, in deciding on the matter, had to apply two criteria: whether the decision that the applicants were not refugees within the meaning of the Geneva Convention was open to any reasonable doubt, and whether the applicants' request for revision in respect of the refusal to grant them a residence permit for humanitarian reasons stood a reasonable chance of success.

The Court of Appeal found irrelevant the applicants' assertion that their case was similar to that of another Roma family requesting asylum in the Netherlands. The court held that the State had also filed an appeal against the decision taken by the President of the Regional Court in that case and that therefore it was clear that the Dutch authorities did not accept the asylum claims of this other Roma family either. The court further held that the applicants had not sufficiently substantiated their claims that they experienced problems as a result of the fact that this other Roma family had featured in a television documentary called "Gypsy Autumn" and that a "hit list" existed with the names of sixteen gypsies on it. Given that the applicants had been in the Netherlands since 25 April 1993, the Court of Appeal found that it could have been expected of them to adduce some evidence in support of these claims.

The Court of Appeal also found that an incident which had taken place on 30 January 1993 during a demonstration of skinheads in the applicants' home town of Pardubice was regrettable, but did not justify the conclusion that the applicants were exposed to persecution within the meaning of the Geneva Convention. The Court of Appeal did not accept the applicants' contention that the Czech authorities encouraged, permitted or refused to act against such incidents. In this respect the court took into account that during the demonstration on 30 January 1993 fourteen skinheads had been arrested and after the applicants' house had been damaged it had been sealed by police and the applicants had been informed that attempts would be made to find the perpetrators.

The Court of Appeal acknowledged that the applicants might be stateless. However, it appeared that the applicants had opted for Czech nationality and that these proceedings were still pending. The Court of Appeal did not find it established that the applicants would be refused Czech nationality or that they would not be allowed to await the outcome of these proceedings in the Czech Republic.

Finally, the Court of Appeal dismissed the applicants' claim that they were entitled to a residence permit pursuant to the so-called "three year policy". The Court of Appeal found that this policy did not apply to the applicants because they had not yet been in the Netherlands for three years.

2.Proceedings concerning the acquisition of citizenship of the Czech Republic and/or of the Slovak Republic

In February 1993 the applicants applied to the Ministry of the Interior of the Slovak Republic for Slovak citizenship. By letter of 3 March 1993 the applicants were informed by the Minister of the Interior that, in view of the principle of ius sanguinis, they already were Slovak citizens.

In November 1993 the applicants applied to the Ministry of the Interior to be released from Slovak citizenship. In December 1993 the Ministry issued the release documents and sent these to the District Office of Pardubice where the applicants lived. The District Office invited the applicants to take receipt of the release documents and to express their choice of citizenship before 30 June 1994, in accordance with Article 18 of Law No. 40/1993 on acquisition and loss of the citizenship of the Czech Republic. The applicants did not reply to this invitation.

By letter of 22 May 1995 the Embassy of the Slovak Republic confirmed the above situation. By letters of 7 and 19 March 1996 the Embassy of the Czech Republic confirmed that none of the applicants are nationals of the Czech Republic.

B.Relevant domestic law

Law No. 40/1993 on acquisition and loss of the citizenship of the Czech Republic

[Translation]

Article 7
Citizenship by conferment

"l.Citizenship of the Czech Republic can be conferred upon request on natural persons who simultaneously meet the following conditions:

a)having permanently and continuously resided on the territory of the Czech Republic for at least five years,

b)being able to prove release from citizenship of another State, or loss of previous foreign citizenship upon acquisition of the citizenship of the Czech Republic, unless the persons concerned are stateless persons,

c)not having been sentenced in the past five years for wilfully having committed a punishable offence,

d)being able to prove knowledge of the Czech language.(…)"

Special provisions applying to citizenship of the Czech Republic in connection with the dissolution of the Czech and Slovak Federal Republic

Article 18
Choice of citizenship

"I.Citizens of the Slovak Republic may choose citizenship of the Czech Republic by means of a declaration made by 30 June 1994 at the latest provided that they

a)have been residing continuously on the territory of the Czech Republic for at least two years,

b)present documents of release from citizenship of the Slovak Republic, except in cases where the person concerned is able to prove that he has applied for release from citizenship of the Slovak Republic and his application has not been granted within three months, and he simultaneously declares at the district office that he relinquishes citizenship of the Slovak Republic; this document is not required in the case where opting for citizenship of the Czech Republic automatically entails the loss of citizenship of the Slovak Republic,

c)have not been sentenced in the past five years for wilfully having committed a punishable offence.

(…)

5. Natural persons shall make such declaration at the appropriate district office in the place of their permanent residence, or the place of their last permanent residence, abroad at the diplomatic or consular office of the Czech Republic."

COMPLAINTS

1. The applicants complain of several infringements of Article 6 para. 1 of the Convention in connection with the asylum proceedings in the Netherlands. They maintain that the Dutch authorities violated Article 6 para. 1 of the Convention, read in conjunction with Article 14 of the Convention, when they refused, after an unreasonable time, the applicants' requests for asylum and a residence permit. They also complain that the proceedings before The Hague Court of Appeal were not public.

2. The applicants further complain in substance that they run a real risk of being exposed to treatment contrary to Article 3 of the Convention if they are expelled by the Netherlands authorities to the Czech Republic, because of their affiliation to the minority of Roma gypsies.

3. The applicants finally complain that after the dissolution of the Czech and Slovak Federal Republic, they could not, according to Article I of Law No. 40/1993, acquire Czech citizenship automatically. They argue that according to Article 18 para. 1 of this law they can only obtain Czech citizenship if they fulfil certain conditions relating to residence and lack of criminal convictions.

..........

THE LAW

1. The applicants complain that the Dutch authorities violated Article 6 para. I of the Convention, read in conjunction with Article 14 of the Convention, when they refused, after an unreasonable time, the applicants' requests for asylum and a residence permit. They also complain that the proceedings before The Hague Court of Appeal were not public.

The Commission has consistently held that the procedures followed by the public authorities to determine whether an alien should be allowed to stay in a country or should be expelled do not fall within the scope of the Convention since they do not involve the determination of civil rights within the meaning of Article 6 of the Convention (cf., e.g., No. 12122/86, Dec. 16.10.86, D.R. 50 p. 268, and No. 12364/86, Dec. 17.10.86, D.R. 50 p. 280).

Moreover, the Commission notes that the Netherlands has not ratified Protocol No. 7 to the Convention. Accordingly, there is no room for considering the applicants' above complaint under Article I of this Protocol.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 of the Convention.

As regards the complaint under Article 14 of the Convention, the Commission recalls that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "die enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (cf. Eur. Court H.R., Karlheinz Schmidt v. Germany judgment of 18 July 1994, Series A no. 291-B, p. 32, para. 22).

Given that the Commission has found that the applicants' procedural complaint does not fall within the ambit of the Convention, it follows that similarly the complaint under Article 14 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 of the Convention.

2. The applicants complain that they run a real risk of being exposed to treatment contrary to Article 3 of the Convention if they are expelled by the Netherlands authorities to the Czech Republic.

Article 3 of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The Commission recalls that Contracting States have the right to control the entry, residence and expulsion of aliens. The right to political asylum is not protected in either the Convention or its Protocols (cf Eur Court H.R., Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102). However, expulsion by a Contracting State of an asylum-seeker may give rise to an issue under Article 3 of the Convention, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he or she is to be expelled (ibid., p. 34, para. 103). A mere possibility of ill-treatment is not in itself sufficient (ibid., p. 37, para. 111).

The Commission notes that the expulsion in question is foreseen to the Czech Republic, i.e. a State Party to the Convention which has declared that it recognises the competence of the Commission to receive individual petitions lodged under Article 25 of the Convention. Furthermore, the Commission considers that the general situation in the Czech Republic is not such that an expulsion to that country would in itself amount to a violation of the Convention or any of its Protocols.

As regards the particular circumstances of the present case the Commission does not consider that the applicants have sufficiently substantiated their claim that they would risk, upon their return to the Czech Republic, persecution or lack of protection against harassment as a result of their affiliation to the minority of Roma gypsies. The likelihood of treatment contrary to Article 3 of the Convention has not therefore been established.

In these circumstances, this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

3. The applicants finally complain that after the dissolution of the Czech and Slovak Federal Republic they could not, according to Article I of Law No. 40/1993, automatically acquire Czech citizenship. They argue that according to Article 18 para. 1 of this law they can only obtain Czech citizenship if they fulfil certain conditions relating to residence and lack of criminal convictions.

The Commission has already found in its case-law that the right to acquire a particular nationality is not, as such, covered by the Convention or its Protocols (cf. No. 11278/84, Dec. 1.7.85, D.R. 43 pp. 216, 221).

However, even assuming that in the particular circumstances of the case the impossibility for the applicants to acquire Czech citizenship was capable of raising issues under Articles 3 and 14 of the Convention (cf. East African Asians v. the United Kingdom, Comm. Report 14.12.73, D.R. 78 p. 5; Nos. 7823-7824/77, Dec. 6.7.77, DR. 11 p. 221), the Commission is not required to determine whether the facts submitted by the applicants disclose any appearance of a violation of these provisions. Article 26 of the Convention provides that the Commission "may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law".

The Commission observes that the former Czechoslovak and the present Czech and Slovak legal systems are, with few exceptions, based on the principle of ius sanguinis: children acquire the citizenship of their parents.

In the present case, all of the applicants are Slovak nationals. This has been confirmed by the Ministry of the Interior of the Slovak Republic as well as by the Embassy of the Czech Republic.

According to Article 18 para. I of Law No. 40/1993 on acquisition and loss of the citizenship of the Czech Republic, citizens of the Slovak Republic could choose citizenship of the Czech Republic by making a declaration before 30 June 1994 provided that they had been permanently and continuously resident on the territory of the Czech Republic for at least two years, that they had a document of release from citizenship of the Slovak Republic and had not had a criminal record for the past five years.

The Commission observes that the applicants were invited by the Czech authorities to opt for and acquire Czech citizenship under Article 18 para. 1 of Law No. 40/1993. However, the applicants did not reply to this invitation.

In these circumstances, the Commission finds that the applicants have not satisfied the requirement as to the exhaustion of domestic remedies laid down in Article 26 of the Convention.

It follows that this part of the application must be rejected pursuant to Article 27 para. 3 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.