AS TO THE ADMISSIBILITY OF
Application No. 34986/97
by Ayse AKIN
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 July 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 October 1996
by Ayse AKIN against the Netherlands and registered on 19 February 1997
under file No. 34986/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish national, born in 1940, and resides
in Amsterdam. Before the Commission she is represented by Ms M.D. van
Aller, a lawyer practising in Amsterdam.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant and her husband are the foster parents of the
applicant's niece Sükran. On 5 September 1982, a son, Bahtiyar, was
born to Sükran and her husband in Amsterdam. As from Bahtiyar's birth
up to and including the third quarter of 1990, Sükran received child
care benefits (kinderbijslag) for Bahtiyar under the General Child Care
Benefits Act (Algemene Kinderbijslagwet - hereinafter referred to as
"the Act").
In its decision of 18 August 1989, the First Instance Court (Sulh
Hukuk Mahkemesi) of Ayancik (Turkey) noted that the applicant and her
husband had remained childless, that their relatives Sükran and her
husband had entrusted their child Bahtiyar as from his birth to the
care of the applicant and her husband, and that the latter now sought
to adopt Bahtiyar. Having established that all parties involved,
including Bahtiyar, agreed to this adoption, the First Instance Court
pronounced Bahtiyar's adoption by the applicant and her husband.
Pursuant to this judgment, Bahtiyar's family name in official
documents was changed to the applicant's family name, including his
Turkish passport issued on 7 November 1989 and his Dutch passport
issued on 12 June 1990. This change in Bahtiyar's family name was
further annotated on 15 May 1990 in his birth certificate at the
Register of births, deaths and marriages (Burgerlijke Stand) of
Amsterdam under the specification that he had been adopted under
Turkish law.
As from April 1990 Bahtiyar lives with the applicant and her
husband and, on 9 May 1990, was registered as such in the Amsterdam
Municipal Population Register (Bevolkingsregister).
At some unspecified point in time, the applicant requested child
care benefits under the Act in respect of Bahtiyar as from the second
quarter of 1990 up to and including the second quarter of 1991. By
letter of 17 July 1991, the Social Insurance Bank (Social
Verzekeringsbank) informed the applicant that her request was rejected
as she did not meet the conditions for these benefits. This letter
ended with the following paragraph:
(Translation)
"We inform you that you may file an appeal against the above
decision. To this end you should submit a, preferably reasoned,
request for a so-called formal confirmation. Such a request needs
to be received by us within a reasonable time (that is to say
within two months). Failure to respect this time-limit may result
in your request not being dealt with."
By letter of 11 February 1992, the Social Insurance Bank further
informed the applicant that her request for child care benefits for
Bahtiyar over the fourth quarter of 1991 was rejected as she did not
meet the conditions for these benefits.
In order to be able to file an administrative appeal, the
applicant's lawyer requested the Social Insurance Bank, by letter of
27 February 1992, to issue a formal confirmation (voor beroep vatbare
beschikking) of the decisions of 17 July 1991 and 11 February 1992.
This formal confirmation was issued on 11 May 1992. According to
this confirmation the applicant's request for formal confirmation of
the decision of 17 July 1991 was inadmissible for not having been
submitted within a reasonable time. In addition it was stated that the
applicant did not meet the conditions for child care benefits for the
period as from the second quarter of 1990 up to and including the
second quarter of 1991. It was further stated that the applicant did
not meet the conditions for child care benefits for the fourth quarter
of 1991 as Bahtiyar could not be regarded as the applicant's own or
foster child under the Act.
On 4 June 1992, the applicant filed an administrative appeal with
the Appeals Tribunal (Raad van Beroep) of Amsterdam.
On 28 August 1992, the Social Insurance Bank transmitted the
applicant's case-file to the Appeals Tribunal. On 30 December 1992, the
Social Insurance Bank submitted a written reaction to the applicant's
appeal to which the applicant responded by letter of 7 April 1993.
Following a hearing held on 28 January 1994, the Administrative
Section of the Regional Court (Sectie Bestuursrecht Arrondisse-
mentsrechtbank) of Amsterdam, having replaced the Appeals Tribunal
following statutory changes, rejected the applicant's appeal as ill-
founded by judgment of 11 March 1994.
In its judgment the Regional Court noted that Bahtiyar's natural
mother Sükran lives about 300 metres from the applicant, that she
visits Bahtiyar nearly daily and that, until the beginning of 1991, she
gave the applicant and her husband an amount of 300 Dutch guilders at
regular intervals. It further noted that Sükran had transferred the
child care benefits she had received for Bahtiyar for the second and
third quarter of 1990 to the applicant's bank account and that the
Social Insurance Bank had informed her on 8 October 1990 that this was
not correct and that the applicant herself should apply for child care
benefits for Bahtiyar.
Insofar as the applicant's request for formal confirmation had
been declared inadmissible for having been submitted out of time, the
Regional Court noted that, in conformity with the constant case-law of
the Central Appeals Tribunal (Centrale Raad van Beroep), the applicant
had been informed in the letter of 17 July 1991 of the existence and
length of the period within which a formal confirmation for appeal
purposes is to be requested and that the applicant's request had been
submitted more than seven months after that date. It held that in these
circumstances the Social Insurance Bank had correctly declared this
request inadmissible for having been submitted out of time.
As regards the refusal to grant the applicant child care benefits
for the fourth quarter of 1991, the Regional Court recalled that,
according to the case-law of the Central Appeals Tribunal, a person's
"own children" within the meaning of Article 7 of the Act are
legitimate children under Dutch law, which status can be created by an
adoption under Dutch law. Insofar as it concerns an adoption pronounced
abroad, it depends on the circumstances of each case whether, for the
purposes of the Act, a child can be considered as the adoptive parents'
"own child". The Regional Court held that in the determination of this
question it is important to determine whether the conditions for and
the legal effects of a foreign adoption may be equated to those of an
adoption under Dutch law.
Noting the differences in legal effects between adoption under
Turkish law and adoption under Dutch law, i.e. that under Turkish law
an adopted child remains an heir-at-law of its natural family and that
the adoption under Turkish law may be reversed at all times, the
Regional Court held that Bahtiyar could not be considered as the
applicant's own child for the purposes of the Act.
As to the question whether Bahtiyar could be considered as the
applicant's foster child for the purposes of the Act, the Regional
Court recalled the case-law of the Central Appeals Tribunal, according
to which a child may be considered as a foster child where it is
maintained and cared for by foster parents as their own child. In
addition to a financial tie between them there must be an emotional tie
in the sense of a close exclusive relation - the foster parents
replacing the natural parents - and the child may no longer find itself
in the natural parents' sphere of influence.
Applying this case-law to the applicant's situation, and noting
in particular that Bahtiyar's natural parents only live about 300
metres from the applicant, that they have regular contacts with
Bahtiyar and have financially supported the applicant until the
beginning of 1991, the Regional Court concluded that Bahtiyar could not
be regarded as the applicant's foster child under the Act.
On 25 April 1994 the applicant filed an appeal with the Central
Appeals Tribunal. On 23 December 1994 the Social Insurance Bank replied
to the applicant's appeal and, by letter of 22 January 1996, the
applicant made further submissions to the Central Appeals Tribunal
including an argument that the Central Appeals Tribunal had violated
Article 6 of the Convention by its failure to schedule a hearing. The
applicant urged the Tribunal to examine her case at the shortest
possible notice in order to avoid a further violation of Article 6 of
the Convention.
By judgment of 1 May 1996, following a hearing held on 13 March
1996, the Central Appeals Tribunal upheld the Regional Court's decision
of 11 March 1994.
The Central Appeals Tribunal upheld the reasoning of the Regional
Court as regards the decision to declare inadmissible for being out of
time the applicant's request for formal confirmation of the decision
of 17 July 1991.
As to the refusal to grant the applicant child care benefits for
the fourth quarter of 1991 on the basis of the finding that Bahtiyar
could not be considered as the applicant's own child or foster child
under the Act, the Central Appeals Tribunal considered that the
Regional Court had been correct in its reasoning and findings in
respect of the question whether Bahtiyar could be considered as the
applicant's own child.
After having considered the applicant's submissions as to the
consequences under family and civil law (familierechtelijke gevolgen)
of the Turkish adoption at issue, the Central Appeals Tribunal added
that doubts could in fact arise as to the recognition of that adoption
in the Netherlands legal order, since it concerned a child born in the
Netherlands, holding also Dutch citizenship, and having parents
residing in the Netherlands of whom the mother also holds Dutch
citizenship.
In respect of the question whether Bahtiyar could be considered
as the applicant's foster child for the purposes of the Act, the
Central Appeals Tribunal held that this should be answered on the basis
of its constant case-law, i.e. whether the foster parents could be
considered as having replaced the natural parents, which must be shown
by a narrow exclusive tie between the foster parents and the child.
The Central Appeals Tribunal found that this requirement had not
been met in the present case. It specified that the natural parents
were not prohibited from having regular contacts with their child, and
it had not been made plausible that a full transfer of the tasks of
care and education had taken place. In the present case, where since
the departure of the child from its natural family uninterrupted and
intensive contacts between them continued to exist, the Tribunal found
that no specific point in time could be indicated on which these tasks
had been fully transferred to the applicant and her husband. In this
respect the Tribunal further pointed out that the applicant had
submitted that Bahtiyar's adoption under Turkish law rather than under
Dutch law had been a deliberate choice since an adoption under Turkish
law allows a stronger remaining link with the natural parents.
In the light of these findings, the Central Appeals Tribunal
concluded that the decisions at issue were not contrary to the
applicant's rights under Articles 8, 12, 14 and 18 of the Convention.
As regards the applicant's complaint under Article 6 para. 1 of
the Convention that the proceedings had exceeded a reasonable time, the
Central Appeals Tribunal held that, even assuming that this requirement
had not been respected, this could not lead to granting children
allowance in violation of applicable statutory provisions.
B. Relevant domestic law and practice
At the relevant time a person wishing to contest a decision of
an administrative organ in the field of social security schemes had to
request formal confirmation in writing. Such formal confirmation, which
included the grounds on which the decision was based, was an
admissibility requirement for an administrative appeal.
Although there were no statutory time-limits under the various
social security laws for requesting formal confirmation, the Central
Appeals Tribunal ruled that this should be done within a "reasonable
time", which that tribunal construed to mean generally within two
months (cf., Centrale Raad van Beroep judgment of 19 March 1974,
Rechtspraak Sociaal Verzekeringsrecht 1974, no. 288). An administrative
organ might declare inadmissible such a request if it was filed too
late. A decision of an administrative organ declaring a request for
formal confirmation inadmissible was itself a decision of which formal
confirmation might be requested with a view to an appeal.
There was no statutory time-limit within which formal
confirmation had to be given.
When formal confirmation had been issued, an appeal lay to the
Appeals Tribunal. It had to be lodged within one month (Article 83 of
the Appeals Act).
From the Appeals Tribunal a further appeal lay to the Central
Appeals Tribunal (Article 145 of the Appeals Act); it too had to be
lodged within one month.
On 1 January 1994 the Administrative Law Act (Algemene Wet
Bestuursrecht) entered into force (cf. Eur. Court HR, Van de Hurk v.
the Netherlands judgment of 19 April 1994, Series A no. 288, p. 15,
para. 39). It lays down new uniform rules of administrative procedure
which apply also to cases such as the present one.
Anyone wishing to challenge a decision of an administrative organ
may lodge an administrative objection with that body, provided that he
or she does so within six weeks (Article 6:7).
If the administrative organ fails to decide within a reasonable
time, or refuses to do so, the party seeking review may lodge an appeal
with the Regional Court without waiting any longer for a decision
(Articles 6:2, 6:12 and 8.1.1). It is thus no longer necessary to
request formal confirmation of a decision of an administrative organ.
A further appeal lies to the Central Appeals Tribunal (Article 18
of the Appeals Act).
Adoption under Dutch law, is subject to a number of conditions
set out in Article 228 of the Netherlands Civil Code (Burgerlijk
Wetboek), which include amongst others that:
- the child must be younger than fifteen at the time of the first
request for adoption. If the child is older than fifteen, it must
have no objections to the adoption;
- the child may not be the natural or legitimate grandchild of the
adopting parents;
- each of the adopting parents must be at least eighteen years and
maximum fifty years older than the child; and
- the child must have been cared for and educated in the family of
the adopting parents for a period of at least one year.
As a result of an adoption under Dutch law, the adopted child
becomes the legitimate child of its adoptive parents and the legal
family relations between the child and its natural parents cease to
exist. The adopted child obtains the family name of the adoptive father
and becomes an heir-at-law of its adoptive parents and other new
relatives. The adoptive parents are to respect all statutory
obligations parents have in respect to their children. Although under
Dutch law adoption is in principle irreversible, an adopted child may
request the Regional Court within a period between two and three years
after coming of age to reverse the adoption, the reasonability of the
request and the adopted child's interest being the criteria to be
applied in the determination of such a request (Article 231 of the
Netherlands Civil Code).
Adoption is dealt with in Articles 253-258 of the Turkish Civil
Code (Nedeni Kanun). Under Turkish law an adopted child does not obtain
the status of a legitimate child of its adoptive parents. The child
concerned does, on the other hand, obtain the family name of its
adoptive parents and becomes an heir-at-law of the adoptive parents.
All rights and obligations of the natural parents are transferred to
the adoptive parents. There are no age limits in respect of the child
to be adopted. An adoptive parent must at least be thirty-five and
there must be an age difference of at least eighteen years between the
child and the adoptive parent.
Where a child has been adopted abroad by parents residing in the
Netherlands who wish to have the foreign adoption and the ensuing legal
effects formally and fully recognised in the Netherlands, the adoptive
parents may seek recognition of the foreign adoption by a Dutch judge.
In such proceedings, the Dutch judge will apply the conditions for
adoption under Dutch law although the judge may take the nationality
of all parties involved including the links between the parties and the
legal system of their country of origin into account. If no such
recognition is sought it is nevertheless possible that certain legal
effects are recognised without any judicial intervention in the
Netherlands depending on the particular circumstances of each case.
In an unpublished judgment of 8 April 1987 of the Regional Court
of Utrecht, submitted by the applicant, it was held that, pursuant to
unwritten rules of Dutch international private law, an adoption
judgment pronounced by a Turkish court in respect of a minor Turkish
national has the same legal consequences in the Netherlands legal order
as it has in the Turkish legal order and that for the acceptance of
these consequences in the Netherlands no further decision is required.
The Regional Court added, however, that an exception to this rule is
made where the above legal effects are inconsistent with Dutch ordre
public. After an ex officio examination of whether there were facts and
circumstances which should lead to a finding that a recognition of the
Turkish adoption judgment at issue would be contrary to Dutch ordre
public and after having found that a further investigation was not
required, the Regional Court concluded that the Turkish adoption
judgment at issue was to be recognised.
In order to meet the expenses for the care and education of
children younger than eighteen parents insured under the General Child
Care Benefits Act may be granted benefits under this Act. It is one of
the general social insurances (volksverzekeringen) in the Netherlands.
It is to be differentiated from the employment related social security
schemes (werknemersverzekeringen) in the Netherlands.
The insured under this Act are in principle all persons younger
than 65 years of age who either reside in the Netherlands or who do not
reside in the Netherlands but are gainfully employed there and subject
to payment of Dutch income taxes. Entitlement to benefits under the Act
is not subject to the condition that the person concerned has
contributed to the scheme (see Eur. Court HR, Van Raalte v. the
Netherlands judgment of 21 February 1997, Reports of Judgments and
Decisions 1997-I, pp. 180-182. paras. 21-28).
Article 7 para. 1 under a. and b. of the General Child Care
Benefits Act reads as follows:
(Translation)
"Pursuant to the provisions of this Act the insured is entitled
to children's allowance for his own children and stepchildren for
whom he provides care and maintenance provided these children:
- are younger than sixteen years of age and belong to his
household;
- are younger than sixteen years of age, not belonging to his
household, and who are maintained to an important extent at
his expense."
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that she did not receive a fair hearing in the proceedings at issue in
that it was found that she had not filed her request for a formal
confirmation within a reasonable time whereas, due to the unclear
wording of the letter of 17 July 1991, it was unclear to her that this
period had already started to run.
2. The applicant further complains under Article 6 para. 1 of the
Convention that she did not receive a fair trial in that the Dutch
courts at issue incorrectly found that an adoption under Turkish law
cannot be equated to an adoption under Dutch law and, consequently,
concluded that Bahtiyar could not be considered as the applicant's own
child or foster child under the relevant provisions of the General
Child Care Benefits Act.
3. The applicant also complains that the proceedings have exceeded
a reasonable time within the meaning of Article 6 para. 1 of the
Convention
4. The applicant complains that the refusal of the Dutch
administrative courts to accept her adoption of Bahtiyar and thus deny
the consequential legal effects under Dutch law is contrary to her
rights under Article 8 of the Convention.
5. The applicant complains that the Dutch administrative courts'
refusal to acknowledge that she, her husband and Bahtiyar together form
a family is contrary to Article 12 of the Convention.
6. The applicant complains that the Dutch administrative courts'
refusal to accept Bahtiyar as her own child deprives him of the
personal security and safety guaranteed to him by Article 5 of the
Convention.
7. The applicant complains that the Dutch administrative courts'
refusal to accept her adoption of Bahtiyar under Turkish law
constitutes treatment which discriminates between children adopted
under Turkish law who have subsequently sought formal recognition of
this adoption from a Dutch judge and children adopted under Turkish law
who have not sought a subsequent recognition from a Dutch judge.
8. The applicant finally complains under Article 1 of Protocol No. 1
that, given the finding of the Central Appeals Tribunal that Bahtiyar
cannot be considered as the applicant's own child since he is still an
heir-at-law of his natural parents, he is unjustly deprived of his
inheritance, i.e. the future inheritance of his parents. The applicant
further submits that, according to the Netherlands authorities, one has
to choose between either seeking a recognition of a Turkish adoption
and consequently losing the right to inherit or waiving the right to
benefits under the General Child Care Benefits Act by not seeking a
recognition from a Dutch judge of an adoption under Turkish law.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention:
- that she did not receive a fair hearing in the proceedings at
issue in that it was found that she had not filed her request in
time for a formal confirmation of the decision stated in letter
of 17 July 1991;
- that she did not receive a fair trial in that the Dutch courts
at issue incorrectly found that an adoption under Turkish law
cannot be equated to an adoption under Dutch law; and
- that the proceedings have exceeded a reasonable time within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads:
"In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing within a reasonable
time by a ... tribunal ..."
a. The Commission considers that the proceedings at issue can be
regarded as constituting a determination of the applicant's civil
rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention and thus fall within the scope of this
provision (cf. Eur. Court HR, Duclos v. France judgment of 17 December
1996, Reports of Judgments and Decisions 1996-VI, pp. 2179-2180, para.
53).
As to the findings of the domestic courts in the applicant's
case, the Commission recalls that under the terms of Article 19
(Art. 19) of the Convention the Commission is not competent to examine
alleged errors of fact or law committed by national courts, except
where it considers that such errors might have involved a possible
violation of the rights and freedoms set forth in the Convention (cf.
No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).
The Commission notes that the applicant's case was determined
following adversarial proceedings before the Regional Court and,
subsequently, the Central Appeals Tribunal. It has not been submitted
nor has it appeared that the applicant was not or was insufficiently
enabled to state her case and to submit whatever she found relevant to
the outcome. In these circumstances, the Commission finds no indication
that the proceedings at issue fell short of the requirements of
Article 6 (Art. 6) as regards fairness of proceedings.
As indicated above, the conclusions reached by the courts in the
applicant's case as regards the admissibility of the applicant's
request for formal confirmation of the decision stated in the letter
of 17 July 1991 or the legal effects of an adoption under Turkish law
for the purposes of obtaining an allowance under the Netherlands
General Child Care Benefits Act cannot, as such, be reviewed by the
Commission under the terms of Article 19 (Art. 19) of the Convention.
It follows that this part of the application must be rejected for
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
b. As to the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention of the length of the proceedings, the
Commission considers that it cannot, on the basis of the case-file,
determine the admissibility of this complaint at this stage and
considers that it is therefore necessary to give notice of this part
of the application to the respondent Government in accordance with Rule
48 para. 2(b) of its Rules of Procedures and to invite them to submit
their observations in writing on the admissibility and merits of this
part of the application.
2. The applicant further complains that the refusal of the Dutch
administrative courts to accept her adoption of Bahtiyar and thus deny
the consequential legal effects under Dutch law is contrary to her
rights under Articles 8 (Art. 8) of the Convention.
Article 8 (Art. 8) of the Convention, insofar as relevant, reads:
"Everyone has the right to respect for his private and family
life ..."
The Commission recalls that the right to adopt is not, as such,
included among the rights and freedoms guaranteed by the Convention and
that there is no positive obligation for Contracting States under
Article 8 (Art. 8) of the Convention to grant to a person the status
of adoptive parent or adopted child (cf. No. 31924/96, Dec. 10.7.97,
D.R. 90, p. 134).
However, a State cannot separate two persons united by an
adoption contract, or forbid them to meet, without engaging its
responsibility under Article 8 (Art. 8) of the Convention (cf. No.
6482/74, Dec. 10.7.75, D.R. 7, p. 75). However, the case-file does not
disclose that such a situation arises in the applicant's case.
The Commission is therefore of the opinion that the facts of the
case do not disclose a violation of the applicant's rights under
Article 8 (Art. 8) of the Convention.
It follows that this complaint must be rejected for being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant complains that the Dutch administrative courts'
refusal to acknowledge that she, her husband and Bahtiyar together form
a family is contrary to Article 12 (Art. 12) of the Convention.
Article 12 (Art. 12) of the Convention provides:
"Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing the
exercise of this right."
The Commission recalls that the adoption of a child by a couple
might, in certain circumstances, be said to constitute the foundation
of a family. However, Article 12 (Art. 12) of the Convention does not
guarantee a right to adopt or otherwise integrate into a family a child
which is not the natural child of the couple concerned (cf. No.
7229/75, Dec. 15.12.77, D.R. 12, p. 32).
The Commission notes that the applicant and Bahtiyar both
permanently reside in the Netherlands, but that the applicant has not
sought to obtain a formal recognition under Dutch law of Bahtiyar's
adoption in Turkey. Moreover it appears that it was an explicit choice
of the applicant to adopt him under Turkish law rather than under Dutch
law given the differences in the legal effects of adoption under both
legal systems.
In these circumstances, the Commission cannot find that the
decisions at issue were contrary to the applicant's rights under
Article 12 (Art. 12) of the Convention.
It follows that this complaint must also be rejected for being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant complains that the Dutch administrative courts'
refusal to accept Bahtiyar as her own child deprives him of the
personal security and safety guaranteed to him by Article 5 (Art. 5)
of the Convention.
Article 5 (Art. 5) of the Convention prohibits unlawful and
arbitrary deprivation of liberty and guarantees certain rights to
persons deprived of their liberty. The Commission finds no issue under
this provision in the present case.
It follows that this complaint must also be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The applicant complains that the Dutch administrative courts'
refusal to accept her adoption of Bahtiyar under Turkish law
constitutes treatment which discriminates between children adopted
under Turkish law who have subsequently sought formal recognition of
this adoption from a Dutch judge and children adopted under Turkish law
who have not sought a subsequent recognition from a Dutch judge.
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Commission recalls that Article 14 (Art. 14) of the
Convention complements the other substantive provisions of the
Convention and its Protocols and that there can be no room for its
application unless the facts of the case fall within the scope of one
of more of such provisions. It safeguards individuals placed in
relevantly similar situations from discrimination. A difference in
treatment is contrary to Article 14 (Art. 14) if is has no objective
and reasonable justification (cf. No. 20769/92, Dec. 29.6.94, D.R. 78,
p. 111; and No. 23419/94, Dec. 6.9.95, D.R. 82, p. 41).
The Commission notes that the applicant seeks to compare the
situation of children adopted abroad in respect of whom recognition has
been sought from a Dutch judge and children adopted abroad in respect
of whom no such recognition has been sought.
Even assuming that the matter raised by the applicant would fall
within the scope of the Convention, the Commission does not find that
these two categories of adopted children find themselves in a
relevantly similar situation which would enable a comparison to be made
for the purposes of Article 14 (Art. 14) of the Convention.
It follows that this complaint must also be rejected for being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
6. The applicant finally complains under Article 1 of Protocol No. 1
(P1-1) that - given the finding of the Central Appeals Tribunal that
Bahtiyar cannot be considered as the applicant's own child since he is
still an heir-at-law of his natural parents - he is unjustly deprived
of his inheritance, i.e. the future inheritance of his parents. The
applicant further submits that, according to the Netherlands
authorities, one has to choose between either seeking recognition of
a Turkish adoption and consequently losing the right to inherit or
waiving the right to benefits under the General Child Care Benefits Act
by not seeking a recognition from a Dutch judge of an adoption under
Turkish law.
Article 1 of Protocol No. 1 (P1-1) provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary
to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
The Commission understands the present complaint as consisting
of two elements; the first one concerning Bahtiyar's position as an
heir-at-law and the second one the applicant's entitlement to child
care benefits in respect of Bahtiyar.
As regards the first element, the Commission observes in the
first place that no complaint has been lodged by or on behalf of
Bahtiyar with the Commission as regards the consequences of the
decision at issue in respect of his inheritance rights. Consequently,
under the terms of Article 25 (Art. 25) of the Convention, the
Commission cannot consider this aspect of the present complaint.
The Commission further does not find it established that the
domestic courts' conclusion that Bahtiyar cannot be considered as the
applicant's adopted son for the purposes of the Act, as such, deprives
the applicant of the possibility to appoint him as her heir.
As to the second element of the present complaint, the Commission
notes at the outset that it does not appear from the applicant's
submissions that she has relied on Article 1 of Protocol No. 1 (P1-1),
either in form or in substance, in the proceedings before the domestic
courts, which is one of the requirements for exhaustion of domestic
remedies within the meaning of Article 26 (Art. 26) of the Convention
(cf. No. 19601/92, Dec. 19.1.95, D.R. 80, p. 46).
Even assuming that the applicant would have complied with this
requirement and even assuming that the benefits at issue can be
regarded as a pecuniary right for the purposes of Article 1 of Protocol
No. 1 (P1-1) (cf. Eur. Court HR, Gaygusuz v. Austria judgment of 16
September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1141-
1142, paras. 39-41), the Commission considers that neither this
provision nor any other provision of the Convention guarantees, as
such, a right that decisions by a foreign judicial authority obtain
immediate legal effect in a given domestic jurisdiction without any
form of judicial recognition in the latter legal order.
Moreover, the Commission notes that a Dutch judicial recognition
of Bahtiyar's adoption by the applicant under Turkish law is not
necessarily a conditio sine qua non for the applicant obtaining child
care benefits in respect of Bahtiyar, since such benefits may also be
granted to a foster child provided it is established that the foster
parents have fully replaced the natural parents as regards the care and
education of the child concerned. Noting the particular circumstances
of the present case, the Commission cannot find the domestic courts'
conclusion as regards this point to be unreasonable or arbitrary.
The Commission is therefore of the opinion that the decision
complained of cannot be regarded as contrary to the applicant's rights
under Article 1 of Protocol No. 1 (P1-1).
It follows that this part of the application must be rejected for
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicant's
complaint that the proceedings have exceeded a reasonable
time; and
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy