AS TO THE ADMISSIBILITY OF
Application No. 13158/87
by Vehbija HOPIC and
Dilber HOPIC-DESTANOVA
against the Netherlands
The European Commission of Human Rights sitting in private
on 4 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, 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 13 August 1987
by Vehbija HOPIC and Dilber HOPIC-DESTANOVA against the Netherlands
and registered on 24 August 1987 under file No. 13158/87;
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 facts of the case, as submitted by the parties, may be
summarised as follows.
The applicants, wife and husband, have Yugoslav nationality.
They were born in 1960 and 1964 respectively and they live in Gilze en
Rijen, the Netherlands. The husband is an industrial worker. Before
the Commission they are represented by Mr. H. Poeth, a lawyer
practising in Tilburg, the Netherlands.
On 12 February 1981 the applicants married in the Netherlands
according to gypsy rites, but they did not register the marriage
according to Dutch law. The husband had a special unrestricted
residence permit (verblijfsvergunning) in the Netherlands, pursuant to
the Dutch policy aimed at integration of gypsies in Dutch society. On
12 May 1981 the wife requested a residence permit in order to remain
with her husband. On 7 July 1981 this was refused by the local head
of police, mainly on the ground that there was no joint household and
that she did not have sufficient means to support herself. On 6
August 1981 she requested the Deputy Minister of Justice to review
this decision. As this request had no suspensive effect, she left the
Netherlands on 7 August 1981. When the Deputy Minister of Justice did
not take a decision within the prescribed three months, the wife
appealed against the implicit refusal on 20 November 1981 to the
Judicial Division of the Council of State (Afdeling Rechtspraak van de
Raad van State).
On 27 November 1981 the applicants married in the Yugoslav
Embassy in The Hague, a marriage recognised under Dutch law. Their
first child was born in 1982 in Tilburg.
On 7 October 1982 the wife was deported to Yugoslavia.
By the end of 1986 she re-entered the Netherlands, after having
spent nearly four years in Belgium, where she gave birth to two more
children, in 1985 and 1986 respectively. During this period the
applicants had regular contact, as the husband visited his wife in
Belgium almost every week and stayed with her each time for a few
days.
On 13 February 1987 the Judicial Division of the Council of
State upheld the refusal of the Deputy Minister of Justice to grant
the wife a residence permit. It agreed with the submissions of the
Deputy Minister of Justice that the residence permit was lawfully
refused on the grounds that the applicants at the time that the
application was brought before the Council of State were not
lawfully married and that the husband did not have sufficient
financial means to support his wife.
On 13 November 1987, the husband was granted a permanent
residence permit by the Dutch authorities.
In the meantime, on 13 February 1985, the applicants had filed
a complaint with the Ombudsman about the excessive length of the
proceedings before the Judicial Division of the Council of State. The
Ombudsman found that the delay was caused by the Deputy Minister of
Justice who only filed the submissions with the Council of State on
8 January 1986. He disapproved of the way the Deputy Minister had
dealt with the applicant's case.
On 1 May 1988 the wife obtained a residence permit.
COMPLAINTS
1. The applicants consider that they have been subjected to
inhuman treatment, as envisaged by Article 3 of the Convention, in
that the authorities failed to expedite the judicial proceedings,
pending which they were forcibly separated, and by imposing conditions
for their reunification which they could not fulfil. They also
consider that Article 6 has been breached in that the decision has not
been taken within a reasonable time.
2. The applicants further complain that Articles 8 and 12 of the
Convention have been violated because they were prevented from having
a family life and from founding a family as a result of the refusal of
the authorities to grant the wife a residence permit and her expulsion
from the Netherlands.
3. They further allege that, as regards the possibilities for
family reunification, they have been discriminated against in
comparison with other groups of persons holding a special but similar
position in Dutch aliens law. They invoke Article 14 of the
Convention in conjunction with Article 8.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 August 1987 and
registered on 24 August 1987.
On 5 February 1990 the Commission decided to communicate the
application to the respondent Government and to ask for observations
on the admissibility and merits of the application with regard to the
issues under Articles 25, 8, 12 and 14 of the Convention.
The Government's observations were received by letter dated
19 April 1990 and the applicants' observations by letter dated 14 June
1990.
THE LAW
1. The applicants consider that the impossibility for them to
live together during the time that their request for a residence
permit was pending constitutes inhuman treatment within the meaning of
Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) reads as follows :
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission recalls that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of Article
3 (Art. 3) (No. 10142/82, Dec. 8.7.85, D.R. 42 p. 86 and Eur. Court H.R.,
Ireland v. United Kingdom judgment of 18 January 1978, Series A no.
25, p. 65, para. 162).
The Commission considers that the situation of which the
applicants complain is not such as to raise an issue under Article 3
(Art. 3) of the Convention.
This part of the application must therefore be rejected as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicants further complain under Article 6 para. 1
(Art. 6-1) of the Convention of the length of the proceedings in
respect of the first applicant's request for political asylum.
However, the Commission recalls its constant case-law according to
which Article 6 para. 1 (Art. 6-1) does not apply to proceedings
concerning asylum or residence permits for aliens (No. 9285/81, Dec.
6.7.82, D.R. 29 p. 205).
It follows that this part of the application must be rejected
as being incompatible ratione materiae with the provisions of the
Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants further argue that the refusal to grant the
wife a residence permit on the ground that the applicants were not
lawfully married at the time amounts to a breach of Article 8 (Art.
8). The refusal also constituted a de facto hindrance to the
enjoyment of the rights set forth in Article 12 (Art. 12).
Article 8 (Art. 8) reads insofar as relevant :
"1. Everyone has the right to respect for his ...
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."
Article 12 (Art. 12) reads as follows :
"Men and women of marriageable age have the right to
marry and to found a family, according to the national
law governing the exercise of this right."
The Government submit in the first place that the applicants
can no longer be considered as victims within the meaning of Article
25 (Art. 25) of the Convention, since both applicants have been granted
residence permits.
They further contend that there has never been a family life
as such between the applicants. Finally, even assuming that a family
life had existed, the interference was justified under paragraph 2 of
Article 8 (Art. 8) as being necessary in a democratic society in the
interests of the economic well-being of the country.
The Commission does not find it necessary to decide whether
the applicants can still be regarded as victims of an alleged
violation of Articles 8 and 12 (Art. 8, 12) for the period between
October 1982 and May 1988, since in any event this complaint is
manifestly ill-founded for the following reason.
The Commission notes that the decision by the Dutch
administrative authorities not to grant the wife a residence permit
was based on the fact that there was no joint household, the marriage
concluded according to gypsy rites not being legally recognised under
Dutch law. The Judicial Division of the Council of State, called upon
to decide whether the above decision could be regarded as lawful was
bound by the facts, which constituted the basis of the challenged
decision, and could not take into account factual or legal elements
which had occured subsequent to the challenged decision, such as the
marriage concluded on 27 November 1981, and which was regarded valid
under Dutch law. Nothing prevented the wife however to present a new
request for a residence permit as soon as she got married to Mr.
Hopic, who had an unrestricted right of residence and to invoke these
changed circumstances in order to be granted a residence permit for
the purpose of family reunification. However, she did so only several
years later. The Commission therefore considers that the fact that
the applicants were unable to have a family life in the Netherlands
between 1982 and 1988 is to be attributed to the wife's tarrying in
taking the necessary administrative steps.
It follows therefore that this part of the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicants further consider that the conditions imposed on
them as gypsies for family reunification constitute discrimination,
since they do not apply to other aliens. They invoke Article 14 of
the Convention in conjunction with Article 8 (Art. 14+8).
The Government contend that in the area of family
reunification the gypsy population is treated in the same way as other
aliens.
The Commission recalls that Article 14 (Art. 14) safeguards
individuals, placed in analogous situations, from discrimination (Eur.
Court H.R., Van Der Mussele Judgment of 23 November 1983, Series A no.
70, para. 46). However, for the reasons indicated above, the
Commission finds nothing in the case file to substantiate the
applicants' allegation.
It follows that this part of the application is also
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy