THIRD SECTION
DECISION
Application no. 35864/11
Rajwinder KAUR
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 15 May 2012 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 22 December 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Rajwinder Kaur, is an Indian national who was born in 1986 and lives in Punjab, India. She was represented before the Court by Mr J.E. Groenenberg, a lawyer practising in Hoofddorp.
2. The facts of the case, as submitted by the applicant, may be summarised as follows. On 10 September 2009 the applicant lodged a request – with the Dutch representation in New Delhi, India – for a provisional residence visa (machtiging tot voorlopig verblijf) for the purpose of joining her partner in the Netherlands, with whom she has a (minor) child. By decision of 21 October 2009 the applicant’s request was denied by the Minister of Foreign Affairs. The applicant was deemed a threat to public order given her conviction by the single-judge chamber of the Regional Court (rechtbank) of The Hague in February 2009 for theft in association with one or more persons, for which offence she had been sentenced to payment of a fine of EUR 400. The Minister also considered that this refusal did not violate the applicant’s right to respect for family life as guaranteed by Article 8 of the Convention given the fact that it had been the applicant’s own doing that had led to her conviction and no insurmountable obstacles could be found preventing the applicant and her family from living their family life outside the Netherlands.
3. By decision of 26 March 2010 the Minister dismissed the applicant’s objection (bezwaar) against the above mentioned decision. The Minister had regard to the fact that the Court of Appeal (gerechtshof) of The Hague had upheld the applicant’s conviction for theft in association with one or more persons in February 2010 and had only reduced the fine to EUR 300. Furthermore, taking into account the principles set out in the Court’s judgments in Boultif v. Switzerland, no. 54273/00, 2 November 2001 and Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII, the Minister considered that the applicant’s right to respect for family life had not been violated.
4. The applicant’s appeal against the decision of 26 March 2010 was upheld by the Regional Court of The Hague by decision of 22 September 2010 and the decision of the Minister was subsequently quashed. The Regional Court considered that the Minister had not weighed the (lack of) seriousness of the offence committed by the applicant in an appropriate manner.
5. The Minister lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State; hereafter “the Division”). By decision of 25 March 2011 the Division upheld the Minister’s further appeal, quashed the judgment of the Regional Court on the applicant’s appeal and rejected that appeal. The Division held that the authorities had struck a fair balance between all interests involved and that there had been no infringement of the applicant’s right to respect for family life. Also on 25 March 2011, the judgment of the Division was sent to the lawyer who had represented the applicant pursuant to article 8:79 of the General Administrative Law Act (Algemene Wet Bestuursrecht).
COMPLAINT
6. The applicant complained under Article 8 of the Convention that her right to respect for her family life had been violated by the Netherlands authorities’ refusal to grant her a provisional residence visa for the purpose of joining her partner in the Netherlands.
PROCEDURE BEFORE THE COURT
7. The application was electronically lodged with the Court by Mr Groenenberg, stating he was acting as the applicant’s representative, on 26 May 2011. Mr Groenenberg sent the signed paper copy of the form and supporting documents to the Court on 27 May 2011 without, however, including an authority form for representation. By letter of 12 September 2011 Mr Groenenberg was requested to complete the application by returning a duly completed, original authority form not later than 10 October 2011. With reference to the Court’s decision in the case of Post v. the Netherlands (no. 21727/08, 20 January 2009), it was also drawn to Mr Groenenberg’s attention that failure to submit an authority form could lead the Court to declare the application inadmissible on the ground that there was no valid application.
8. No reply having been received, on 20 October 2011 Mr Groenenberg was once again requested to submit an authority form, this time not later than 10 November 2011. This letter also contained the warning that the Court could declare the case inadmissible in the absence of an authority form.
9. On 22 December 2011 Mr Groenenberg submitted a completed and signed authority form. The accompanying letter did not contain any explanation for the delay.
THE LAW
10. The applicant raised a complaint under Article 8 of the Convention in relation to the refusal of the Dutch authorities to grant her a provisional residence visa. Firstly, however, it is to be considered whether the complaint has been lodged within a period of six months from the date on which the final decision was taken, pursuant to Article 35 § 1 of the Convention.
11. Article 35 § 1 of the Convention, in so far as relevant, reads:
“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”
Rule 36 § 1 of the Rules of Court provides:
“Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative.”
Rule 45 of the Rules of Court, in so far as relevant, reads:
“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant’s representative.
...
3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”
Rule 47 §§ 1 and 5 of the Rules of Court, in so far as relevant, provide:
“1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise. It shall set out
(a) the name, date of birth, nationality, sex, occupation and address of the applicant;
(b) the name, occupation and address of the representative, if any;
(c) the name of the Contracting Party or Parties against which the application is made;
(d) a succinct statement of the facts;
(e) a succinct statement of the alleged violation(s) of the Convention and the relevant arguments;
(f) a succinct statement on the applicant’s compliance with the admissibility criteria (exhaustion of domestic remedies and the six-month rule) laid down in Article 35 § 1 of the Convention; and
(g) the object of the application;
and be accompanied by
(h) copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application.
...
5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”
Paragraph 4 of the Practice Direction on the Institution of Proceedings, appended to Rules 45 and 47 of the Rules of Court and issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended on 24 June 2009, provides as follows:
“If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.
Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.”
Persons wishing to lodge an application electronically are also informed in the on-line application form that such electronic submission suspends the six-month time-limit provided a signed paper copy of the form, together with all supporting documents, is sent to the Court within eight weeks. The on-line application form further states that if the person signing is a representative, the form is to be accompanied by a duly completed authority form for representation. In this context the Court emphasises that in principle it is to be provided with the original authority form if the applicant is represented in the Strasbourg proceedings, pursuant to Rule 45 § 3 of the Rules of Court.
12. The purpose of the six-month rule is to promote security of law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997-V). As the Court has previously held, it would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an applicant or his or her representative could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. Applicants and their representatives must therefore pursue their applications with reasonable expedition, after any initial introductory contact (P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004). A failure to do so may lead the Court to decide that the interruption of the six-month period is to be invalidated and that it is the date of the submission of the completed application which is to be considered as the date of its introduction (see Rule 47 § 5 of the Rules of Court and paragraph 4 of the Practice Direction on the Institution on Proceedings, quoted above).
13. As to the question whether the omission to submit an authority form – in cases where applicants are represented –, may have consequences for the date of introduction of an application, it is true that the Court has previously held that the date on which a form of authority has been submitted is not decisive for the purposes of assessment of the compliance with the six-month requirement (see Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009 and W.S. v. Poland, no. 21508/02, § 42, 19 June 2007). However, that consideration concerned the – different – question whether it is required that an authority form be submitted within a period of six months from the date on which the final decision was taken at the national level. The question at issue here is whether an application – even if it contains all the data and documents as set out in Rule 47 § 1 of the Rules of Court – can continue to be considered to have been introduced at a particular date when an authority form is not submitted until considerably later and after the expiry of time-limits fixed for the submission of that form. The Court is of the opinion that such should not be the case, for the following reasons.
14. In a number of cases in which the applicant had not been in contact with the Court directly, the Court has held that it considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim(s) within the meaning of Article 34 of the Convention on whose behalf they purport to act. Where the case files did not contain a power of attorney – i.e. a document in which the applicants themselves had indicated that they wished the stated representative to lodge an application with the Court on their behalf –, the Court considered that such cases should be rejected for want of an “applicant” for the purposes of Article 34 of the Convention and it declared them inadmissible as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention (see Post, cited above; K.M. and Others v. Russia (dec.), no. 46086/07, 29 April 2010; Çetin v. Turkey (dec.), no. 10449/08, 13 September 2011).
15. It would clearly run contrary to the purpose of the six-month rule as set out above (paragraph 12) if Convention proceedings could be instituted on behalf of purported applicants who did not confirm to the Court for an unexplained and unlimited length of time their wish for those proceedings to be set in motion on their behalf. In addition, against the background of the Court’s current overload and the fact that a large number of applications raising serious issues on human rights are pending, it can no longer be expected of the Court that it deal with the merits of cases in which time-limits set for the purpose of submitting an authority form are exceeded without an extension having been sought and an explanation provided for the delay incurred in complying with this very simple yet crucial procedural requirement (see mutatis mutandis Bock v. Germany (dec.), no. 22051/07, 19 January 2010).
16. Turning then to the circumstances of the present case, the Court considers that the six-month period started to run on 25 March 2011, i.e. the date on which the Administrative Jurisdiction Division of the Council of State upheld the Minister’s further appeal and on which date that decision was sent to the applicant’s representative as provided for by national law (see paragraph 5 above). Accordingly, the application to the Court should have been introduced at the latest on 25 September 2011.
17. As mentioned above (paragraph 7), the first communication received in this case was the electronic submission of the application form on 26 May 2011. However, the Court does not consider this to be date of the introduction of the application. It observes in this respect that although Mr Groenenberg submitted the signed paper copy of the application form as well as supporting documents on 27 May 2011, no duly signed and completed authority form was included. Moreover, such a form was also not submitted within the time-limits fixed for that purpose in the two letters subsequently sent to Mr Groenenberg, and in which he was explicitly warned that failure to submit an authority form within those time-limits could lead the Court to declare the application inadmissible (see paragraphs 7 and 8 above).
18. It was not until 22 December 2011 that a completed authority form was despatched to the Court. The Court observes that the accompanying letter did not contain any explanation for the delay.
19. In these circumstances the Court finds that the date of the submission of the authority form, namely 22 December 2011, is to be considered as the date of introduction of the application pursuant to Rule 47 § 5 of the Rules of Court. Since, as mentioned above (paragraph 16), the six-month time period ended on 25 September 2011, it follows that the application has been lodged out of time and that it must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy