AS TO THE ADMISSIBILITY OF
Application No. 14095/88
by Hassan AKBULUT
against the Netherlands
The European Commission of Human Rights sitting in private
on 12 October 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
MM. C.L. ROZAKIS
L. LOUCAIDES
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 June 1988 by
H. A. against the Netherlands and registered on 2 August 1988
under file No. 14095/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in 1951 and, at the
time of introduction of this application, he was in prison in The
Hague, the Netherlands. He is represented by Mrs. G.S. Koopman-Rond,
a lawyer practising in The Hague.
The applicant arrived with his wife and children in the
Netherlands from Turkey on 25 October 1974. On 26 August 1980 he was
granted permanent resident status. His wife and five children are
also Turkish nationals, and have independently been granted permanent
residence status. The children were born between 1971 and 1980.
On 12 November 1982, the applicant was convicted in second
instance by the Court of Appeal (Gerechtshof) of The Hague of
complicity to murder. He was sentenced to 10 years' imprisonment.
The Supreme Court (Hoge Raad) rejected his appeal in cassation on
19 April 1983. Two subsequent requests for a retrial were rejected.
The applicant has always maintained his innocence. The circumstances
of the crime led the courts to conclude that it was the result of a
Turkish family feud.
On 23 July 1985, the Deputy Minister of Justice revoked the
applicant's permanent residence permit and declared him an undesirable
alien (ongewenst vreemdeling). His request for a review of this
decision was without success, as was his appeal to the Council of
State (Raad van State).
In its decision of 10 December 1987, it stated, inter alia,
that the applicant could not be considered to be integrated into Dutch
society because he had only been in the country for seven years when
he committed the crime, which, moreover, was a culturally determined
crime. Furthermore, it stated that the applicant's claim to innocence
and his requests for retrial, did not change the fact that he had been
lawfully convicted and sentenced to 10 years' imprisonment.
The applicant was released on parole on 6 September 1988 and
subsequently deported to France where he was granted a temporary
residence permit.
COMPLAINTS
1. The applicant complains of various shortcomings in his
detention and trial. He alleges that, therefore, his expulsion is
based on a defective conviction. He invokes Article 5 para. 2 and the
whole of Article 6 of the Convention.
2. Furthermore, the applicant complains that his permanent
residence permit was withdrawn and that he was declared an undesirable
alien on 23 July 1985, which is 31/2 years after the day of the murder.
The final decision on his appeal against the withdrawal and the
declaration was taken on 10 December 1987. He submits that this
exceeds "a reasonable time" within the meaning of Article 6 para. 1 of
the Convention.
3. The applicant complains of an unjustified interference with
his family life. He submits that he will be separated from his wife
and children because of his expulsion. He invokes Article 8 of the
Convention. He furthermore complains of discrimination because the
expulsion is an extra punishment which cannot be imposed on a Dutch
person. He invokes Article 14 of the Convention.
THE LAW
1. The applicant has complained of the lawfulness of his
detention and the fairness of his trial. He has invoked Articles 5
(Art. 5) and 6 (Art. 6) of the Convention.
However, the Commission notes that the final decision in the
criminal proceedings against the applicant was taken on 19 April 1983,
which is more than six months before this application was introduced.
It follows that this part of the application must be rejected under
Articles 26 (Art. 26) and 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant has also complained of the duration of the
proceedings concerning the withdrawal of his permanent residence
permit. He has invoked Article 6 para. 1 (Art. 6-1) of the Convention.
However, the Commission recalls that Article 6 (Art. 6) is not
applicable to proceedings concerning the withdrawal of a permanent
residence permit and a declaration of being an undesirable alien (cf.
No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205). This part of the
application is therefore incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 27 para. 2
(Art. 27-2).
3. Finally, the applicant has complained that his deportation and
undesirable alien status amount to an interference with his right to
respect for his family life. Furthermore, he claims that his
expulsion is an unfair differentiation in comparison with Dutch
nationals. He has invoked Articles 8 (Art. 8) and 14 (Art. 14) of
the Convention.
The Commission recalls that expulsion from a country in which
close members of the family of the person concerned are living may be
contrary to Article 8 (Art. 8) of the Convention (cf. No. 6357/73,
Dec. 8.10.74, D.R. 1 p. 77 ; No. 9285/81, Dec. 6.7.82, D.R. 29 pp. 205,
209).
In the present case the Commission is of the opinion that the
applicant's expulsion from the Netherlands constituted an interference
with the applicant's right to respect for his family life within the
meaning of Article 8 para. 1 (Art. 8-1) of the Convention.
The Commission recalls, however, that under Article 8 para. 2
(Art. 8-2) of the Convention there may be an interference by a public
authority with the exercise of the right to respect for family life,
if such interference is in accordance with the law and is necessary
in a democratic society for the prevention of disorder and crime, for
the protection of health and morals, or for the protection of the
rights and freedoms of others.
The Commission notes from the file that the withdrawal of the
applicant's residence permit and the declaration of undesirable alien
were made in accordance with the relevant provisions of the Aliens Act
(Vreemdelingenwet). Given the nature and the seriousness of the crime
for which the applicant was convicted, the Commission is satisfied
that the interference complained of was justified as a measure
necessary in a democratic society for the prevention of disorder and
crime. Furthermore, the Commission finds the alleged difference in
treatment objectively and reasonably justified.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy