AS TO THE ADMISSIBILITY OF
Application No. 13916/88
by Istvan LAKNER, Agatha Helena MIN
and their children
against the Netherlands
The European Commission of Human Rights sitting in private
on 12 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
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 23 May 1988
by Istvan LAKNER, Agatha Helena MIN and their children against the
Netherlands and registered on 7 June 1988 under file No. 13916/88;
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, as submitted by the applicants, may be summarised as
follows.
The first applicant, born in Hungary in 1952, resides at
Amsterdam in the Netherlands. The second applicant, a Dutch citizen
born in 1957, resides at Amsterdam. The applicants married in 1984
and then lived at Amsterdam. Their children, both Dutch citizens,
were born in 1984 and 1987. In 1990 the applicants' marriage was
dissolved.
In the proceedings before the Commission the applicants are
represented by Mrs. J.J. Bolten, a former lawyer practising in
Amsterdam.
The first applicant, of whom it was not clear whether he was a
Hungarian national or a stateless person, was granted political asylum
in Sweden after he fled Hungary in 1976. A conviction for possession
of drugs led to his expulsion from Sweden. In 1979 he went to the
Netherlands where he was denied asylum. Subsequently he was sentenced
to imprisonment for possession of drugs. After his conditional release
he was expelled several times to Sweden and Belgium. In this context
he unsuccessfully instituted various proceedings to avoid expulsion.
In February 1989 he was granted a temporary residence permit. On 4
May 1990 he received Dutch nationality.
COMPLAINTS
The applicants complain that their right to respect for their
family life has been violated for several years, as the Dutch
authorities wanted to expel the first applicant and there existed a
constant threat that he would have to return to Hungary. Moreover,
the rest of the family had been expected to follow him. However, as
the Hungarian authorities had deprived the first applicant of his
nationality, neither he nor the second applicant and their children
would at that time have been accepted in Hungary. Furthermore, no
other country would have accepted him. The applicants submit that
these facts constituted at that time a violation of Article 8 para. 1
of the Convention even if the first applicant has in the meantime been
granted Dutch nationality.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 May 1988 and registered
on 7 June 1988.
On 30 September 1988 the applicants requested the Commission
to indicate an interim measure under Rule 36 of the Commission's Rules
of Procedure in view of the first applicant's imminent expulsion. On
14 October 1988 the Commission decided not to apply Rule 36.
Also on 14 October 1988 the Commission decided to communicate
the application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application with regard to the issue under Article 8 of the Convention
concerning the right to respect for family life.
The Government's observations were received by letter dated
2 March 1989 and the applicants' observations by letter dated 17 April
1989. Further information was submitted by the applicants by letter
dated 31 May 1990.
THE LAW
The applicants complain of the first applicant's imminent
expulsion to Hungary to where his family would have had to follow him.
They contend that at that time this threat constituted a breach of the
right to respect for family life as guaranteed by Article 8 (Art. 8)
of the Convention.
The Commission recalls that there is no right to enter, remain
or reside in a particular country guaranteed as such by the
Convention. However, if a person is excluded from a country where his
close family resides, an issue may arise under Article 8 (Art. 8) of the
Convention (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
The respondent Government submit that, since the first
applicant has been granted an unrestricted residence permit, the
applicants have no concrete interest in the continuation of the
proceedings.
The Commission observes that the first applicant has been
granted a residence permit and subsequently Dutch nationality.
There is therefore no longer a danger of expulsion. As a result, the
applicants can no longer claim to be victims of the alleged violation
within the meaning of Article 25 (Art. 25) of the Convention.
It follows that the application is 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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy