AS TO THE ADMISSIBILITY OF
Application No. 13318/87
by K. and A.
against the Netherlands
The European Commission of Human Rights sitting in private
on 14 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. 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 31 August 1987
by K. and A.against the Netherlands and registered on 13 October 1987
under file No. 13318/87;
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 first applicant is a Pakistani citizen born in 1943 in
Tandoj, Pakistan. His present address is unknown to the Commission.
The second applicant, the first applicant's wife, is a Dutch citizen,
born in 1944 in Ghazi, Pakistan. She is presently residing in
Amsterdam. In the proceedings before the Commission the applicants
are represented by Mr. W.J. van Bennekom, a lawyer practising in
Amsterdam.
The facts, as submitted by the applicants, may be summarised as
follows:
On 6 July 1974 the first applicant entered the Netherlands.
Under the so-called "Regularisation order" (regularisatieregeling) for
illegal migrant workers, he was granted a residence permit (vergunning
tot verblijf) at the end of 1975 or the beginning of 1976.
The second applicant, with her six children, entered the
Netherlands in the beginning of 1979. On 5 June 1979 she was granted
a residence permit.
On 2 March 1981 the first applicant was granted a permanent
residence permit (vergunning tot vestiging).
On 7 November 1981 the first applicant's cousin was killed in
Amsterdam.
By judgment of 24 February 1983 the Court of Appeal
(Gerechtshof) of Amsterdam convicted the first applicant of complicity
to kidnapping, and of being an accessory to arson and the murder of
his cousin and sentenced him to seven years and six months'
imprisonment. The first applicant has always denied the charge.
By decision of 18 December 1984 the Deputy Minister
(Staatssecretaris) of Justice withdrew the first applicant's permanent
residence permit, in accordance with Section 14 para. 1 (c) of the
Aliens Act (Vreemdelingenwet). By the same decision, the Deputy
Minister declared the first applicant an undesirable alien (ongewenste
vreemdeling), in accordance with Section 21 para. 1 (b) and (c) of the
Aliens Act.
On 1 April 1985 the first applicant requested the Deputy
Minister to revise her decision. By decision of 26 June 1985
the Deputy Minister rejected the request.
On 22 July 1985 the first applicant appealed to the Judicial
Division of the Council of State (Afdeling Rechtspraak van de Raad van
State). Since this appeal had no suspensive effect, he instituted
summary proceedings (kort geding) with the President of the Regional
Court (Arrondissementsrechtbank) of Amsterdam, requesting a
prohibition to deport him from the Netherlands until the Council of
State had decided on his appeal. By judgment of 11 December 1986 the
President of the Regional Court granted the request. On 24 December
1986 the State of the Netherlands appealed against this judgment to
the Court of Appeal (Gerechtshof) of Amsterdam. By judgment of
9 April 1987 the Court of Appeal quashed the judgment of the President
of the Regional Court.
By decision of 23 September 1986 the second applicant and her
under-age children were naturalized Dutch citizens.
In November 1986 the first applicant was conditionally
released from prison.
By judgment of 30 June 1987 the Judicial Division of the
Council of State rejected the first applicant's appeal against the
Deputy Minister's decision of 26 June 1985. It held, inter alia, that
no objective obstacles existed for the first applicant's family to
return to Pakistan and that, therefore, no interference in the first
applicant's family life was involved. Even assuming that there was an
interference in the first applicant's family life, this interference
was, according to the Judicial Division, justified under Article 8
para. 2 of the Convention for the prevention of disorder.
It appears that the first applicant has been in hiding since
9 April 1987 in order to prevent his deportation from the Netherlands.
COMPLAINTS
The applicants complain that the withdrawal of the first
applicant's permanent residence permit and the decision to declare him
an undesirable alien amount to a lack of respect for their family life
within the meaning of Article 8 para. 1 of the Convention without this
being justified under Article 8 para. 2 of the Convention.
THE LAW
The applicants have complained that the withdrawal of the
first applicant's permanent residence permit and the decision to
declare him an undesirable alien amount to an interference with their
right to respect for their family life. They have invoked Article 8
of the Convention.
The Commission recalls that according to its established
case-law the Convention does not guarantee, as such, any right for an
alien to enter or reside in a specific country (cf., for example, No.
4403/70, Dec. 10.10.70, Collection 36 p. 92; No. 5269/74, Dec. 8.2.72,
Collection 39 p. 104) or not to be expelled from a particular country
(cf., for example, no. 4314/69, Dec. 2.2.70, Collection 32 p. 96).
However, the Commission has also stated 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., for
example, No. 6357/73, Dec. 8.10.74, D.R. 1 p. 77; No. 7816/77, Dec.
19.5.77, D.R. 9 p. 219).
In the present case the Commission is of the opinion that the
first applicant's expulsion from the Netherlands would constitute an
interference with the applicants' right to respect for their 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 withdrawal of the first applicant's permanent residence
permit was decided in accordance with Section 14 para. 1 (c) of the
Aliens Act. The decision to declare the first applicant an
undesirable alien was taken in accordance with Section 21 para. 1 (b)
and (c) of the Aliens Act. The Commission notes that it would involve
considerable hardship for the second applicant and her children, if
they were to follow the first applicant to Pakistan.
However, given the nature and the seriousness of the crime for
which the first 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.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)