concerned would be personally at risk". The State party therefore considers it
incumbent upon asylum seekers from Zaire to demonstrate that specific facts and
circumstances apply in their particular case to justify that risk.
4.6 The State party states that in assessing the circumstances of the
individual asylum seeker from Zaire, the guiding principle is the consideration
by the Legal Uniformity Division in the above-mentioned judgement of
3 November 1994, that a Zairian national who has previously been detained and
who is therefore known to the authorities is at greater risk to be apprehended
upon return and to be detained again. The Court considered that asylum seekers
who can demonstrate sufficiently convincingly that they belong to this group
should therefore be granted a residence permit for compelling reasons of a
humanitarian nature. In this context, the State party explains that detention
should be understood as "registered detention", that is, a detention that has
lasted for a substantial period of time. If it is found that a registered
detention has occurred, the asylum seeker is granted a residence permit for
compelling reasons of a humanitarian nature.
4.7 As to the author’s claim, the State party states that his asylum
application was examined in the light of the Geneva Convention on the Status of
Refugees and article 3 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms.
4.8 The State party states that the author’s membership of UDPS in itself is
not sufficient to assume that he has a well-founded fear of persecution. The
Court has ruled that as UDPS is a recognized political opposition party in
Zaire, and the author’s activities for this party have been only marginal, it is
not likely that the Zairian authorities have taken a negative interest in him.
Furthermore, the State party asserts that on his first arrest, the author agreed
that he was apprehended together with a large number of other people, clearly at
random. The second arrest was likewise not an action directed against the
author personally.
4.9 The State party states that when the author was first questioned by an
official of the Immigration and Naturalization Service, he claimed that he had
been subjected to ill-treatment and showed his scars. The scars were however
not such as to prompt the official to request a detailed medical examination.
Furthermore, the State party states that neither the individual nor his
authorized representative requested such an examination at any time during the
proceedings. Equally, the author did not decide to have himself examined by
another medical practitioner in order to produce a medical certificate. Nor did
the Court consider a medical examination to be necessary.
4.10 The State party endorses the position adopted by the Netherlands courts
that it cannot be anticipated on the basis of the facts that X is so well-known
to the Zairian authorities that he will be arrested if he returns to Zaire.
Furthermore, according to the State party, the swift release after his second
arrest suggests that the Zairian authorities do not regard him as the
perpetrator of activities that pose a threat to the State, unlike the case of
Mr. Mutombo b/ who was sentenced by a military court to a long term of
imprisonment.
Counsel’s comments
5.1 In her comments on the State party’s submission, dated 5 March 1995,
counsel states that the Dutch Alien Act allows for the possibility that a single
judge in chambers decides on the question whether expulsion would contradict
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