Application No. 12881/87
by G. KARLI and E. BALCI
against the Netherlands
The European Commission of Human Rights sitting in private
on 9 December 1987, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 12 March 1987
by G. Karli and E. Balci against the Netherlands and registered
on 29 April 1987 under file No. 12881/87;
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&S
The facts of the case, as submitted by the applicants, may be
summarised as follows.
The first applicant is a Turkish citizen, born in 1960. The
second applicant is her daughter, born in 1986. They are at present
living in the Netherlands and are represented in the proceedings
before the Commission by Ms. van Aller, a lawyer practising in
Amsterdam.
On 20 August 1981 the first applicant married a Turkish
national in Turkey. He has lived in the Netherlands since 1972, where
he has a residence permit, and is a so-called "second generation
immigrant".
The exact date of the first applicant's entry into the
Netherlands is unknown.
On 27 March 1984 the first applicant requested a residence
permit from the Head of Police (Hoofd van de Plaatselijke politie) of
The Hague.
The permit was refused on the same date on the grounds that
the husband did not have proper living accommodation or sufficient
means to support them, as required by Dutch law.
She appealed against this decision to the Deputy Minister of
Justice (Staatssecretaris van Justitie).
This appeal was rejected on 3 July 1984 on the ground that the
first applicant's husband, although in temporary employment at the
time of the appeal, would not have sufficient means to support the
applicants in the near future.
The first applicant thereupon appealed to the Council of
State's Division for Jurisdiction (Afdeling Rechtspraak van de Raad
van State), which rejected the appeal on 12 December 1986 on the same
ground.
According to Dutch law this decision also affects the position
of the second applicant, although she was born in the course of the
proceedings and was therefore not an appellant in these proceedings.
The effect of this decision is that the applicants must leave
the Netherlands voluntarily or risk expulsion.
According to the statement of a psychiatrist, the first
applicant's husband is extremely depressed and has suicidal tendencies
because of the impending expulsion of his wife and daughter.
The applicants submit that they would have to live in
impoverished conditions if they had to return to Turkey, because their
family has financial problems.
It appears that the Government's policy concerning the
position of relatives of second generation immigrants wishing to join
them in the Netherlands has changed, since the decision of the Deputy
Minister of Justice was taken in that lack of sufficient means of
subsistence can now only be held against such an immigrant if he can
be held responsible for it.
The decision by the Council of State's Division for
Jurisdiction was based on the situation at the time of the decision by
the Deputy Minister of Justice and therefore on the old policy.
The applicants' lawyer, on 11 March 1987, asked the police
whether they could request another residence permit and were told that
they could not.
The following day the applicants requested a residence permit
in writing. The Head of Police of The Hague, taking into account the
new policy, refused the new request on 21 April 1987.
The applicants appealed against this decision to the Deputy
Minister of Justice. This appeal was given suspensive effect.
On 17 August 1987, the Deputy Minister of Justice granted them a
temporary residence permit valid until 23 March 1988 under the
condition that the first applicant lives with her husband.
&_COMPLAINTS&S
The applicants allege that their impending expulsion has caused
severe damage to the mental health of the first applicant's husband.
They claim that this constitutes inhuman treatment of the
husband as well as of the applicants. They invoke Article 3 of the
Convention.
The second complaint concerns the composition of the Council
of State's Division for Jurisdiction.
The applicants claim that as a result of the composition of
the court, they were not accorded a fair trial by an independent and
impartial tribunal.
They allege that, as a result of the decision by the Council
of State's Division for Jurisdiction, the first and second applicants
will be deprived of their civil right to live with their husband and
father respectively and to be supported by him.
They invoke Articles 6, 8 and 12 of the Convention.
Furthermore, they claim that neither the Council of State's
Division for Jurisdiction nor the Minister of Justice can be
considered to be an effective remedy because they are not independent
and impartial tribunals.
Moreover, they are deprived of the possibility of making a new
request for a residence permit and thus of obtaining a decision which
is based on the new policy. In this respect they invoke Article 13 of
the Convention.
Finally they complain that the first applicant has been
discriminated against because the Council of State's Division for
Jurisdiction took into account that her husband could be held
responsible for being dismissed.
According to the applicants this was not in accordance with
the policy of that time. They invoke Article 14 of the Convention.
&_PROCEEDINGS BEFORE THE COMMISSION&S
The application was introduced on 12 March 1987 and registered
on 29 April 1987. In a letter from the applicants dated 10 September
1987, the Commission was informed that the first applicant had been
granted a temporary residence permit. The Secretariat consequently
requested the applicants to indicate whether they wish to maintain
their application before the Commission. By letter of 28 October 1987,
the applicants informed the Commission that they wish to withdraw
their application.
&_REASONS FOR THE DECISION&S
The Commission notes that the applicants have now been
granted a temporary residence permit and wish to withdraw their
application. The Commission sees no reasons relating to the general
interest to continue an examination of their application. The
Commission, therefore, accedes to the applicants' request to withdraw
their application.
Having regard to Rule 44 para. 1 (b) of its Rules of
Procedure, the Commission
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)