Submitted by: M. F. [name deleted]
Alleged victim: M. F.
State party Concerned: the Netherlands
Date of communication: 13 April 1984
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 2 November 1984,
adopts the following:
Decision on admissibility
1. The author of the communication, dated 13 April 1984, is M. F., a national of Chile, born 1960, at present residing in the Netherlands. He is represented before the Committee by a Dutch lawyer.
2.1 The author states that after political persecution and detention in Chile he left the country on 26 July 1980 on a valid passport and that he flew to Spain, where he resided until March 1981, when he travelled to Belgium and subsequently to Den Helder in the Netherlands. On 1 June 1981, he filed an application for political asylum in the Netherlands. On 15 September 1982, his requests for a residence permit and refugee status were turned down by administrative decree on the grounds that he had not belonged to an opposition party, had been able to leave Chile without objection from the authorities and had sojourned in Spain and Belgium prior to entering the Netherlands. The author's lawyer appealed against the administrative decree on 22 October 1985, contending that the author had been a member of a resistance group and that the Chilean Government had a practice of inducing "undesirable elements" to leave the country. .On 16 June 1983, a hearing took place before a Standing Consultative Committee for Alien Affairs of the Ministry of Justice and on 16 September 1983 the Deputy Minister of Justice by administrative decree rejected the request for asylum. An appeal was lodged against the decree on 14 October 1983, before an "independent judge" (name of court not given), but it appears that this procedure has not been concluded. The Deputy Minister of Justice, bypassing the appeal, ordered the expulsion of the author by 3 November 1983 at the latest. Thereupon the author initiated a separate court procedure against the State of the Netherlands, seeking an injunction against the expulsion order, at least until the appeal was decided. On 17 January 1984, in an interim judgement, the president of the Court in The Hague stated that the author did not qualify for refugee status. On 15 March 1984, the Court ruled that the author's submission that he suffered from a mental illness and that this should be considered in his favour did not constitute a ground barring expulsion. Therefore, on 29 March 1984, the Deputy Minister of Justice instructed the local police to expel the author, stipulating that an appeal against the judgement of the president of the Court could not delay the process of expulsion. A further appeal against the judgement of 15 March 1984 was lodged on 24 May 1984 at a Superior Court in The Hague. It appears that this appeal is still pending.
2.2 The author claims that the following provisions of the International Covenant on Civil and Political Rights have been violated: article 6 in connection with an earlier suicide attempt (it is unclear how this claim is to be understood but it appears that the life of the author was at one time in danger, because he had taken an overdose of pills. He maintains, however, that it was never his intention to put an end to his life and that he had merely taken the drugs in an attempt to temporarily forget his misery); article 7, because the author's expulsion would now constitute cruel and inhuman treatment; article 9, because of the risk of being rearrested in Chile, if he is not granted asylum elsewhere; article 14, paragraph 1, because there is still a procedure pending (appeal lodged on 14 October 1983) and the author's expulsion would deprive him of equality status before the court; article 17, paragraph 1, because the author lives in common-law marriage with his pregnant girl-friend, an Israeli national, who would not be admitted to Spain or Chile, so that expulsion would be tantamount to interference with his privacy and family life.
2.3 As far as can be seen two proceedings in the author's case (on separate issues) are still pending before the Dutch courts, namely, (a) the appeal lodged on 14 October 1983 before an independent judge against the decision of the Deputy Minister of Justice (of 16 September 1983) to reject the request for asylum and (b) the appeal lodged on 24 May 1984 before a Superior Court in The Hague against the decision of the Court of The Hague (of 15 March 1984) that the author's claim that he suffers from a mental illness does not constitute a ground barring his expulsion.
2.4 The author does not indicate whether the same matter is being examined by another procedure of international investigation or settlement.
3. Before considering any claims contained in a communication, the Human Rights Committee shall, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
4. A thorough examination of the communication has not revealed any facts in substantiation of the author's claim that he is a victim of a breach by the State party of any rights protected by the Covenant. In particular, it emerges from the author's own submission that he was given ample opportunity, in formal proceedings including oral hearings, to present his case for sojourn in the Netherlands. The Committee, accordingly, concludes that the author has no claim under article 2 of the Optional Protocol.
5. The Human Rights Committee therefore decides:
The communication is inadmissible.