AS TO THE ADMISSIBILITY OF
Application No. 33257/96
by Andries H. KLIP and Swantje A. KRÜGER
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
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 August 1996 by
Andries H. KLIP and Swantje A. KRÜGER against the Netherlands and
registered on 6 September 1996 under file No. 33257/96;
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 first applicant is a Dutch national, born in 1965. The second
applicant is a German national, born in 1964. The applicants are a
married couple and reside in Zeist, the Netherlands.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
a. Particular circumstances of the present case
The applicants have a relationship with each other since 1987
and, in November 1995, have jointly bought the house in which they
live.
On 2 January 1996, the second applicant applied for a residence
permit on grounds of stay with the first applicant, which was
subsequently issued with a validity of one year. On 17 January 1996,
the applicants gave notice to the Registrar of births, deaths and
marriages (Ambtenaar van de burgerlijke stand, hereinafter referred to
as "Registrar") of the municipality of Zeist of their intention to get
married.
Upon indication by the Registrar, the first applicant informed
the Aliens Department (Vreemdelingendienst) of the intended marriage.
Upon request of the Aliens Department, the first applicant provided the
Aliens Department with the necessary information for a written
statement referred to in Article 44 para. 1(k), Book I of the Civil
Code (Burgerlijk Wetboek), i.e. the data requested in part A of the
standard questionnaire D79-1 (see under b. Relevant domestic law). At
that point in time the first applicant did not realise that this
information was requested for the purposes of Article 44 para. 1 (k),
Book I of the Civil Code, but thought the information was needed in
view of the imminent change in the second applicant's civil status.
On 6 February 1996, the Registrar of Zeist accepted to register
the applicants' notification of their intended marriage on
10 April 1996, but informed them that they should seek a new statement
referred to in Article 44 para. 1(k), Book I of the Civil Code, as the
validity of the initial statement would have expired on the date of
their marriage.
By letter of 26 February 1996, the applicants informed the
Registrar of their objections against seeking permission of the Aliens
Department for their marriage. They submitted that such an obligation
was contrary to their rights under Articles 8, 12 and 14 of the
Convention. They further submitted that the condition was superfluous,
since it would not create a stronger right of residence for the second
applicant than the one she already had.
By letters of 5 and 25 March 1996, the Registrar informed the
applicants that, pursuant to the Act on prevention and suppression of
marriages of convenience (Wet voorkoming en bestrijding
schijnhuwelijken) of 2 June 1994, a statement referred to in Article 44
para. 1(k), Book I of the Civil Code is one of the documents which must
be submitted, where one or both future spouses do not hold Dutch
citizenship. At the date of marriage this statement must not be older
than two months.
The applicants were further informed that, as they did not intend
to seek a new statement although, pursuant to Article 58 para. 1, Book
I of the Civil Code, the validity of their initial statement would
expire on 18 March 1996, the Registrar would not be able to issue a
marriage certificate. Consequently, the applicants' marriage planned
for 10 April 1996 could not take place if they would not submit a new
statement before 10 April 1996.
On 1 April 1996, the applicants filed a petition (verzoekschrift)
with the Regional Court (Arrondissementsrechtbank) of Utrecht in which
they objected to the Registrar's refusal to issue a marriage
certificate in the absence of a new statement referred to in Article 44
para. 1(k), Book I of the Civil Code and requested a judicial order to
the Registrar to issue the marriage certificate.
On 11 June 1996, the Registrar informed the applicants' lawyer
that, following an informal request from the Regional Court, he had
contacted the Aliens Department with the question whether it would be
possible to issue a second statement without requiring the personal
appearance of the applicants. The Aliens Department had reacted
favourably and, on 14 May 1996, issued a new statement with validity
until 14 July 1996.
The applicants married on 26 June 1996. Although the proceedings
before the Regional Court had thus become devoid of purpose, the
applicants chose to continue these proceedings in order to obtain a
decision as to the costs of the proceedings.
b. Relevant domestic law
On 1 November 1994, the Act on prevention and suppression of
marriages of convenience entered into force. This Act sought to create
a systematic examination of all intended marriages involving aliens and
all such marriages which have been concluded abroad. As a result of
this Act, a new Article 44 was included in Book I of the Civil Code.
This new provision enumerates the documents which must be submitted to
the Registrar when notifying an intended marriage.
Article 44 para. 1(k) requires, in case one of the future spouses
does not hold Dutch citizenship, the submission of a statement issued
by the Head of the local police in accordance with the Aliens Act
(Vreemdelingenwet) to the effect that the foreign partner is lawfully
residing in the Netherlands, has filed an application for a residence
permit or does not intend to take up residence in the Netherlands.
In order to obtain this statement, the future spouses must
complete part A of the standard questionnaire D79-1. The Dutch future
spouse is requested to state his or her name, place and date of birth,
current address and telephone number(s), and nationality. He or she is
further required to submit a proof of identity and, as the case may be,
proof of permanent residence abroad.
The information sought about the alien future spouse is the name,
date, country and place of birth, nationality, current address and
telephone number(s). Where children are involved, information on the
particulars and parentage of these children is also requested. Finally,
information is requested as regards the period of time the alien future
spouse has already resided in the Netherlands, whether he or she
already holds a residence permit, whether he or she has applied for a
residence permit or does not intend to take up residence in the
Netherlands.
By completing part B of the standard questionnaire D79-1, the
authorities of the Aliens Department are to verify the immigration
history and residence status of the alien future spouse, including
questions whether or not this person has been expelled in the past.
Only where the Alien Department has a reasonable suspicion that
the intended marriage is one of convenience, it further has to complete
an additional standard questionnaire D79-2. If the Aliens Department
does not have such a reasonable suspicion, this questionnaire does not
have to be completed.
The questionnaire D79-2 contains questions about the aliens'
immigration and residence history, whether the Registrar has ever
refused to issue a marriage certificate to the persons involved before,
whether a previous marriage of one of the persons involved has ever
been annulled on grounds of being a marriage of convenience, whether
a registration of a marriage concluded abroad has ever been refused
before, whether incorrect information has ever been provided by or on
behalf of the alien concerned, whether it has appeared that the future
spouses hardly know each other, whether or not the future spouses have
made contradictory statements, whether statements expressed by the
intended spouses indicate a marriage of convenience, whether the Dutch
partner has clearly indicated not to be willing to go to the country
of the alien spouse, whether or not the partners unusually frequently
change addresses, whether or not the Dutch future spouse has already
concluded more than one short-lasting marriage and whether the future
spouses are in an extreme hurry to conclude the intended marriage.
Pursuant to Article 53 para. 3, Book I of the Civil Code, the
public prosecutor is competent to oppose (stuiten) a marriage for being
contrary to Dutch public order where the primary purpose of one or both
of the future spouses is to obtain entry into the Netherlands.
According to Article 56, Book I of the Civil Code a marriage cannot be
concluded until an opposition has been lifted in accordance with the
procedure laid down in Article 55, Book I of the Civil Code.
Under Article 71(a), Book I of the Civil Code, upon a request of
the public prosecutor, a concluded marriage can be nullified as a
fictitious act contrary to Dutch public order where the primary purpose
of one or both of the future spouses was to obtain entry into the
Netherlands.
COMPLAINTS
1. The applicants complain under Article 8 of the Convention that
an investigation as to their motives to get married with each other
constitutes an unjustified interference with their right to respect for
their private life.
2. The applicants complain under Article 12 of the Convention that
the exercise of their right to marry was unjustly delayed on
discriminatory and humiliating grounds, i.e. an investigation into the
motives of their marriage, which went beyond the accepted limits under
the Commission's case-law. The applicants refer in this respect to the
cases of Hamer (No. 7114/75, Comm. Report 13.12.79, D.R. 24, p. 5) and
Draper (No. 8186/78, Comm. Report 10.7.80, D.R. 24, p. 72).
3. The applicants further complain under Article 12 of the
Convention that they were only given a limited period of time in which
they could get married, i.e. the period of validity of the statement
referred to in Article 44 para. 1(k), Book I of the Civil Code.
4. The applicants finally complain under Article 14 of the
Convention in conjunction with Article 12 of the Convention that the
obligation for non-nationals to obtain a statement referred to in
Article 44 para. 1(k), Book I of the Civil Code from the Aliens
Department when they wish to marry a Dutch national constitutes a
discriminatory treatment on grounds of nationality. They further
complain under Article 14 of the Convention that this requirement is
superfluous in the circumstances of their case, as the second
applicant's residence status would not be altered on basis of her
marriage.
THE LAW
1. The applicants complain under Article 8 (Art. 8) of the
Convention that an investigation as to their motives to get married
with each other constitutes an unjustified interference with their
right to respect for their private life.
Article 8 (Art. 8) of the Convention, insofar as relevant,
reads:
"1. Everyone has the right to respect for his private ... 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 ... the economic well-being of the country..."
The Commission notes in the first place that the information
requested by the Aliens Department from the applicants themselves, in
order to verify the immigration status of the second applicant in view
of her intended marriage to a Dutch national, consisted mainly of the
applicants' particulars.
Having noted the scope of the questions the applicants had to
reply in part A of the standard questionnaire D79-1, the Commission
considers that an obligation to provide information of this kind at the
request of public authorities does not constitute an interference with
the applicants' private life within the meaning of Article 8 para. 1
(Art. 8-1) of the Convention (cf., mutatis mutandis, No. 16810/90, Dec.
9.9.92, D.R. 73, p. 136).
The Commission further does not find it established that, apart
from the verification of the second applicant's residence status, any
further investigation has been conducted by the Aliens Department as
to the motives of the marriage at issue. In this respect it notes that
the second applicant already held a Dutch residence permit.
It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicants complain under Article 12 (Art. 12) of the
Convention that the exercise of their right to marry was unjustly
delayed on discriminatory and humiliating grounds, i.e. an
investigation into the motives of their marriage, and that they were
only given a limited period of time in which they could get married.
Article 12 (Art. 12) of the Convention provides as follows:
"Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing the
exercise of this right."
The Commission recalls that this provision of the Convention
guarantees the fundamental right to marry and found a family. The
exercise thereof "shall be subject to the national laws of the
Contracting States, but ... the limitations thereby introduced must
not... restrict or reduce the right in such a way or to such an extent
that the very essence of the right is impaired (cf. Eur. Court HR, F.
v. Switzerland judgment of 18 December 1987, Series A no. 128, p. 16,
para. 32). As noted by the Court in the F. v. Switzerland judgment, in
all the Council of Europe Member States, these limitations appear as
conditions and are embodied in procedural or substantive rules.
The Commission notes that in the present case, the issue concerns
substantive rules, the purpose of which is to prevent marriages of
convenience between Dutch nationals and aliens for immigration
purposes. In this respect the Commission recalls that the Dutch
immigration policy is clearly related to the economic well-being of the
country, in particular to the authorities' concern, given the
population density in the Netherlands, to regulate the labour market
(cf. No. 14501/89, Dec. 6.1.92, D.R. 72, p. 118).
Although in the specific circumstances of the present case the
relevance of the statement at issue may be questionable, the Commission
cannot find the limitation at issue, namely the applicants' obligation
to submit a statement referred to in Article 44 para. 1(k), Book I of
the Civil Code, to be contrary to Article 12 (Art. 12) of the
Convention (cf. No. 31401/96, Dec. 16.10.96, D.R. 87, p. 160).
Insofar as the applicants complain that they only had a limited
period of time within which they could get married in view of the date
of expiry of the validity of the statement referred to in Article 44
para. 1(k), Book I of the Civil Code, the Commission does not find it
established that the Aliens Department was unable or unwilling to issue
a new statement when it appeared that its validity would not cover the
marriage date chosen by the applicants.
It follows that this part of the application must also be
rejected as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The applicants finally complain under Article 14 of the
Convention in conjunction with Article 12 (Art. 14+12) of the
Convention that the obligation for non-nationals to obtain a statement
referred to in Article 44 para. 1(k), Book I of the Civil Code from the
Aliens Department when they wish to marry a Dutch national constitutes
a discriminatory treatment on grounds of nationality. They further
complain under Article 14 (Art. 14) of the Convention that this
requirement is superfluous in the circumstances of their case, as the
second applicant's residence status would not be altered on basis of
her marriage.
Article 14 (Art. 14) of the Convention reads:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
For the purposes of Article 14 (Art. 14) a difference of
treatment is discriminatory if it has no objective and reasonable
justification, that is if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised. Moreover the
Contracting States enjoy a margin of appreciation in assessing whether
and to what extent differences in otherwise similar situations justify
a different treatment (cf. Eur. Court HR, Van Raalte v. the Netherlands
judgment of 21 February 1997, Reports 1997-I, No. 29, para. 39).
The Commission notes that the obligation to submit a statement
referred to in Article 44 para. 1(k), Book I of the Civil Code is aimed
at preventing marriages of convenience between Dutch nationals and
aliens for immigration purposes.
The Commission considers that the resulting difference of
treatment between Dutch nationals who wish to marry another Dutch
national and Dutch nationals who wish to marry a non-Dutch national has
an objective and reasonable justification. It pursues the legitimate
aim of controlling immigration in a densely populated country. The
Commission cannot find, in view of this aim, that requesting future
spouses in such a situation to submit information as regards the
immigration status of the alien future spouse constitutes a
disproportionate measure.
The Commission does not find that the applicants' other complaint
under Article 14 (Art. 14) of the Convention raises any issues under
this provision.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy