AS TO THE ADMISSIBILITY OF
Application No. 29192/95
by Mehmet ÇILIZ
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 27 June 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
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 6 November 1995
by Mehmet ÇILIZ against the Netherlands and registered on
9 November 1995 under file No. 29192/95;
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 citizen, born in 1965, and residing
in Meram Konya, Turkey. Before the Commission he is represented by Mrs.
G.E.M. Later, a lawyer practising in The Hague, the Netherlands.
A. The particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant came to the Netherlands on 31 March 1988. He
married a Turkish woman on 29 December 1988. Upon his request he was
granted a residence permit by the head of the Utrecht police on 14
February 1990 in order to live with his spouse and to work in the
Netherlands. This residence permit was valid for one year and, on 5
April 1990, the applicant was given a document showing that as a result
of his marriage he was allowed to reside in the Netherlands
indefinitely.
On 27 August 1990, a son, Kürsad, was born to the applicant and
his wife.
The applicant and his wife separated in November 1991 and divorce
proceedings were initiated. Consequently, the applicant lost the right
to reside in the Netherlands indefinitely since this had been dependent
on his marriage. On 24 January 1992, the applicant applied for and was
granted an independent residence permit in order to work in the
Netherlands. This permit was valid for one year.
The applicant requested the Regional Court
(Arrondissementsrechtbank) of Utrecht to establish an arrangement
concerning parental access (omgangsregeling, hereinafter "access
arrangement"). The Regional Court requested the Child Care and
Protection Board (Raad voor de Kinderbescherming) to investigate the
feasibility of such an arrangement.
In its report of 18 January 1993, the Child Care and Protection
Board stated that the mother had agreed for the applicant to meet his
son several times on a provisional basis at the maternal grandparents'
house. The applicant had failed to contact the Board. The Board
concluded that the applicant's situation had not become sufficiently
clear and for this reason the Board found that an access arrangement
would not be appropriate.
The applicant requested a prolongation of his residence permit
in order to work in the Netherlands from the head of the Utrecht police
on 11 January 1993. At this time the applicant was in receipt of
unemployment benefits and for this reason his request was rejected on
3 February 1993. As regards Article 8 of the Convention, the head of
the Utrecht police considered, inter alia, that since it appeared that
the applicant had no regular contacts with his son there was no family
life between them within the meaning of this provision. In this respect
it was held that the applicant's claim that it was not his fault that
no regular contacts took place could not be taken into account, since
regard could only be had to the factual situation. Furthermore, even
assuming there was family life between the applicant and his son, an
interference with the right to respect for this life would, according
to the head of the Utrecht police, be justified under para. 2 of
Article 8.
The applicant requested the State Secretary for Justice
(Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien)
the decision of the head of the Utrecht police. He submitted that he
was in the process of obtaining a permanent employment contract. He
conceded that at present the contacts with his son had not yet been
regularised but that the Regional Court of Utrecht was expected to
examine and to grant a request for an arrangement concerning parental
access shortly.
The applicant's marriage was officially dissolved on 17 March
1994.
On 15 July 1994, the applicant was heard by the Advisory
Commission for Aliens Affairs (Adviescommissie voor
Vreemdelingenzaken). The applicant stated that he visited his son
between one and three times a week.
The Advisory Commission proposed to the State Secretary for
Justice that the applicant's request for revision be rejected. Even
though it considered that there was family life between the applicant
and his son and that the refusal to grant the applicant continued
residence in the Netherlands would constitute an interference with the
applicant's right to respect for his family life, the Commission held
that this interference was justified for the protection of the economic
well-being of the country. In this respect the Commission considered
that the applicant was in receipt of unemployment benefits. It might
be true that these benefits would be withdrawn in view of the
applicant's contract as a stand-by employee in the clothing industry,
but the Commission did not regard these activities as serving an
essential national interest since it had appeared that on the Dutch
labour market other people, having priority over the applicant, were
available for this kind of work.
The Commission further took into account that the applicant had
only lived with his son for one and a half year, that he saw his son
irregularly and briefly, and that he contributed irregularly to the
costs of his son's upbringing and education.
Having regard to the opinion of the Advisory Commission, the
State Secretary for Justice rejected the applicant's request for
revision on 6 October 1994. The applicant was informed at the same time
that an appeal (beroep) against this decision would not suspend his
expulsion.
The applicant filed an appeal against the decision of 6 October
1994 with the Aliens' Chamber (Vreemdelingenkamer) of the Regional
Court of The Hague sitting at Amsterdam (nevenzittingsplaats Amsterdam)
on 31 October 1994. On the same date he also requested the Chairman of
the Aliens' Chamber to grant an interim measure (voorlopige
voorziening) allowing him to await the outcome of the appeal
proceedings in the Netherlands.
Meanwhile, following a hearing on 25 November 1994, the Utrecht
Regional Court on 24 January 1995 appointed the applicant's former wife
as guardian and the applicant as auxiliary guardian of their son. It
further ordered that as a contribution to the costs of the upbringing
and education of his son, the applicant should pay to the mother any
child benefits he might receive under the statutory regulations. The
Regional Court decided, however, not to establish an access arrangement
and rejected the applicant's request for such an arrangement.
The applicant filed an appeal with the Court of Appeal
(Gerechtshof) of Amsterdam against the decision of the Utrecht Regional
Court not to establish an access arrangement. A hearing took place on
19 April 1995, during which the applicant's former wife stated that she
was not willing to co-operate in an access arrangement, since she felt
that the applicant only wished to have such an arrangement established
in order to obtain a right to reside in the Netherlands. Furthermore,
she did not believe that the applicant was capable of maintaining
regular contacts with his son and submitted that irregular contacts
would not be conducive to the boy's well-being.
On 10 May 1995, a hearing took place before the Regional Court
of The Hague sitting at Amsterdam on the appeal filed by the applicant
against the rejection of his request for revision of the decision not
to prolong his residence permit. The Regional Court rejected the appeal
by decision of 24 May 1995. It held that the refusal to grant the
applicant continued residence in the Netherlands constituted a
justified interference with his family life. The Regional Court
considered in this respect, inter alia, that the Utrecht Regional Court
had rejected the applicant's request to establish an access
arrangement. It found, furthermore, that the contacts between the
applicant and his son were irregular and short and that the applicant
did not contribute regularly to the costs of his son's upbringing and
education. The Regional Court further held that the economic well-being
of the country should be taken into account as well. It noted that the
applicant had submitted an employment contract from which it appeared
that his probationary period had not yet been concluded and that, in
any event, there was a sufficient amount of work force with priority
over the applicant available on the Dutch labour market for the kind
of work the applicant was employed to do.
When this decision was sent to the applicant, i.e. on 26 June
1995, the applicant's probationary period had come to an end and he was
in the possession of a contract of employment for an indefinite period.
By separate decision of 24 May 1995, the President of the
Regional Court rejected the request for an interim measure in view of
the fact that the appeal proceedings had been concluded.
As regards the applicant's request for the establishment of an
access arrangement, the Court of Appeal decided on 1 June 1995 to
adjourn these proceedings and to request the Child Care and Protection
Board to organise a number of experimental contacts between the
applicant and his son and to report on these contacts.
On 19 September 1995, the applicant was informed that the Court
of Appeal had further adjourned the proceedings until 3 December 1995
in view of the heavy workload of the Child Care and Protection Board.
By letter of 16 October 1995, the applicant asked the Court of Appeal
whether there was no other organisation capable of organising the
experimental contacts as he wished to see his son and a further delay
would have negative effects on both the applicant and the child.
On 31 October 1995, the applicant was placed in detention with
a view to his expulsion (vreemdelingenbewaring).
On 2 November 1995, the applicant again requested a residence
permit in order to work in the Netherlands, to be able to be with his
child and on compelling humanitarian grounds. At the same date, the
applicant filed a request with the Haarlem Regional Court in order to
obtain his release.
The first experimental contact between the applicant and his son,
organised by the Child Care and Protection Board, took place on 3
November 1995 at the offices of this organisation. Since the applicant
was still in detention, he was accompanied by two police officers who
observed the meeting between the applicant and his son from a different
room.
On 7 November 1995, the applicant's representative contacted the
officer of the Child Care and Protection Board who had also been
present at the meeting between the applicant and his son. In the
opinion of this officer, another experimental contact should be
organised by the Board, perhaps in the presence of a psychologist,
following which the question of the possibility of a supervised access
arrangement should be considered.
The applicant's request for a residence permit of 2 November 1995
was rejected by the State Secretary for Justice on 6 November 1995. The
State Secretary held that no relevant new facts had been adduced by the
applicant. Based on the information submitted by the police officers
who had observed the meeting between the applicant and his son on 3
November 1995, the State Secretary considered furthermore that it had
not appeared that the relationship between the applicant and his son
at the present time was meaningful, mutual or anything more than
shallow and neither was it realistically foreseeable that a closer
relationship would develop.
The applicant filed an objection (bezwaar) against the refusal
of a residence permit with the State Secretary for Justice on
6 November 1995. He submitted, inter alia, that proceedings concerning
access to his son were still pending before the Amsterdam Court of
Appeal and that the first experimental contact which had been ordered
by the Court of Appeal on 1 June 1995 had only taken place as late as
3 November 1995. Given the fact that at that time the applicant had
been in detention, it was unreasonable to expect that this meeting
between the applicant and his son would give a true impression of the
nature of the relationship between them.
On 8 November 1995, the applicant was expelled to Turkey.
B. Relevant domestic law and practice
In general, an application for a residence permit in the
Netherlands is granted only if the individual's presence serves an
essential national interest or if there are compelling humanitarian
grounds (klemmende redenen van humanitaire aard). At the relevant time,
foreigners married to either a Dutch national, a recognised refugee or
a holder of a permanent residence permit fell into the latter category.
After one year of legal residence in the Netherlands they acquired ex
jure an indefinite right to remain pursuant to Section 10 para. 2 of
the Aliens Act (Vreemdelingenwet).
This right expired ex jure when the spouses no longer co-habited
(Section 47 para. 1 sub (a) of the Order on Aliens
[Vreemdelingenbesluit]). If, at that time, the foreigner had been
married for more than three years and had legally resided with his
spouse in the Netherlands for at least one year during the time
directly preceding the dissolution or breakdown of the marriage, he
would be eligible for an independent residence permit.
An independent residence permit in order to work in the
Netherlands, which had been granted following the dissolution or
breakdown of a marriage, could be prolonged if at the time of the
request for such a permit the foreigner was certain of employment for
at least another year. However, prolongation was not refused if, inter
alia, there were compelling humanitarian grounds (klemmende redenen van
humanitaire aard) for accepting the individual's presence in the
Netherlands.
An "essential national interest" as mentioned above is considered
to exist where a foreigner is employed in a sector where there is not
a sufficient number of capable people available on the labour market
to fill all vacancies. To establish whether this is the case, regard
is only had to the number of registered unemployed people enjoying
priority (prioriteit genietend aanbod). For example, on the Dutch
labour market E.U. citizens have priority over most other foreigners.
COMPLAINTS
The applicant complains in the first place that his expulsion
constituted a violation of Article 3 of the Convention. In this respect
he submits that a meeting between himself and his son was suddenly
organised on 3 November 1995, raising expectations on the side of his
son of more frequent contacts with his father but was followed five
days later by his father's expulsion.
The applicant further complains of a violation of Article 8 of
the Convention, arguing that the interference with his right to respect
for his private and his family life cannot be justified under para. 2
of this provision.
The applicant finally complains that the decision of The Hague
Regional Court sitting at Amsterdam of 24 May 1995 amounts to
unjustified discrimination, in that a distinction is made between
persons who are and those who are not employed in a sector where there
is a sufficient number of unemployed people enjoying priority available
on the Dutch labour market. The applicant submits that employees in a
sector with an insufficient number of such unemployed people are able
to enjoy their rights under Article 8 of the Convention, whereas the
applicant is not. He invokes Article 14 in conjunction with Article 8
of the Convention.
THE LAW
1. The applicant complains that the refusal to grant him continued
residence in the Netherlands and his resulting expulsion infringed
Article 3 (Art. 3) of the Convention, which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Insofar as the applicant has alleged that his expulsion amounted
to a violation of this provision in respect of his son, the Commission
notes that the application has not been introduced on behalf of the
applicant's son. Therefore, the Commission is not competent to examine
this part of the complaint.
As regards the alleged violation of Article 3 (Art. 3) of the
Convention in respect of the applicant, the Commission recalls that a
treatment has to reach a certain level of severity before it can be
considered to be contrary to Article 3 (Art. 3) of the Convention. The
assessment of this level depends on all circumstances of the case, such
as the nature and context of the treatment, the manner and method of
its execution, its duration, its physical or mental effects and, in
some instances, the age of the victim (cf. Eur. Court H.R., Cruz Varas
and Others judgment of 20 March 1991, Series A no. 201, p. 31, para.
83).
The Commission finds that the facts of the present case do not
demonstrate that the applicant underwent suffering of the level
inherent in the notions of "inhuman" or "degrading" treatment (cf. Eur.
Court H.R., Tyrer judgment of 25 April 1978, Series A no. 26).
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further claims that his expulsion constituted a
breach of his right to respect for his private and family life under
Article 8 (Art. 8) of the Convention. This provision, insofar as
relevant, reads as follows:
"1. Everyone has the right to respect for his private and
family life ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission finds that it cannot, on the basis of the file,
determine the admissibility of this complaint at this stage and
considers that it is therefore necessary, in accordance with Rule 48
para. 2 (b) of the Commission's Rules of Procedure, to give notice of
this complaint to the respondent Government.
3. The applicant finally complains under Article 14 in conjunction
with Article 8 (Art. 14+8) of the Convention of an unjustified
difference in treatment. He submits that he would have been granted
continued residence in the Netherlands if he had been working in a
sector where there were insufficient unemployed people enjoying
priority available on the Dutch labour market.
Article 14 (Art. 14) of the Convention provides as follows:
"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 in the first place that Article 14
(Art. 14) of the Convention has no independent existence since it has
effect solely in relation to the enjoyment of the rights and freedoms
guaranteed by the other substantive provisions of the Convention and
its Protocols. Furthermore, it safeguards individuals against
discriminatory offences only if they are placed in analogous situations
(cf. Eur. Court H.R., Rasmussen judgment of 28 November 1984, Series
A no. 87, pp. 12 and 13, paras. 29 and 35).
The Commission further recalls that for an interference with the
right guaranteed in Article 8 para. 1 (Art. 8-1) to be justified under
para. 2 of this provision, it must, inter alia, pursue one of the
legitimate aims listed in para. 2. The "economic well-being of the
country" being one such legitimate aim, the Commission considers that
in order to assess the effects of the granting of residence to a
foreigner on the economic well-being of the country, it may well be
relevant for the national authorities to take the situation on the
labour market into account.
In this respect the Commission finds that the applicant is not
in an analogous situation to a person who is employed in a sector where
there is not a sufficient number of unemployed people enjoying priority
readily available. Accordingly, there has been no discriminatory
treatment within the meaning of Article 14 (Art. 14) of the Convention.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN the examination of the applicant's complaint
of an unjustified interference with his right to respect for his
private and family life;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy