AS TO THE ADMISSIBILITY OF
Application No. 13113/87
by Mehmet POLAT
against the Netherlands
The European Commission of Human Rights sitting in private
on 6 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 3 July 1987 by
Mehmet POLAT against the Netherlands and registered on 27 July 1987
under file No. 13113/87;
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 applicant is a Turkish citizen, born in 1942 and at
present residing in Gaziantep, Turkey. He is represented, in the
proceedings before the Commission, by Mr. J.F. Sabaroedin, a lawyer
practising in Oldenzaal, the Netherlands.
The facts, as submitted by the applicant, may be summarised as
follows:
On 6 February 1969 the applicant came to the Netherlands with
his wife and two children. In the Netherlands two other children were
born, in 1971 and 1973 respectively.
On 21 June 1974 the applicant was granted a permanent
residence permit.
On 7 October 1979 the applicant travelled from the Netherlands
to the Federal Republic of Germany. There he was arrested on
suspicion of heroin trading. On 10 July 1980 he was convicted by the
Hamburg Regional Court (Landgericht) and sentenced to 51/2 years'
imprisonment for heroin trading under aggravating circumstances and
tax fraud. In December 1982 he was released from prison for good
behaviour.
On 2 December 1982 the Deputy Minister (Staatssecretaris) of
Justice decided to withdraw the applicant's permanent residence
permit, in accordance with Section 14 para. 1(c) of the Aliens Act
(Vreemdelingenwet). The Deputy Minister considered this decision
justified, in view of the seriousness of the crime committed.
His permanent residence permit having been withdrawn, the
applicant was deported, upon his release in December 1982, from
Germany to Turkey. However, he received permission to return
temporarily to the Netherlands in connection with the proceedings
regarding the withdrawal of his permanent residence permit.
By letter of 21 December 1982 the applicant requested the
Deputy Minister for a revision of her decision.
By decision of 30 September 1983 the Deputy Minister rejected
the request.
On 6 October 1983 the 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 Almelo, requesting a prohibition
to deport him from the Netherlands until the Council of State had
decided on his appeal. On 19 October 1983 the President rejected the
request.
By decision of 17 January 1984 the Deputy Minister of Justice
declared the applicant an undesirable alien (ongewenste vreemdeling).
On 28 February 1984 the applicant requested the Deputy Minister for a
revision of this decision. On 22 January 1985 the Deputy Minister
rejected the request. By letter of 13 February 1985 the applicant
appealed to the Judicial Division of the Council of State.
By decision of 9 January 1987 the Judicial Division of the
Council of State rejected the applicant's appeal against the decision
to withdraw his permanent residence permit. It considered, inter
alia, that the applicant had seriously infringed public order.
It held that the crime for which the applicant had been convicted in
the Federal Republic of Germany, was also considered to be serious in
the Netherlands, and that part of the facts that had been established
by the German judge had taken place in the Netherlands.
The Council found that, in view of the seriousness of the
infringement on the public order, the personal interests of the
applicant did not require the State to refrain from withdrawing the
permanent residence permit.
By decision of the same date the Judicial Division of the
Council of State rejected the applicant's appeal against the decision
to declare him an undesirable alien.
The applicant's wife and children still live in the
Netherlands.
COMPLAINTS
The applicant complains that because of the withdrawal of his
permanent residence permit his family life is endangered. He points
out that he has been living with his family in the Netherlands since
1969, that they are completely acclimatized in that country, and that
in particular his children, two of whom were born in the Netherlands,
are very attached to the Dutch society. He invokes Article 8 para. 1
of the Convention.
The applicant submits that, in the present case, the
interference with his right under Article 8 para. 1 of the Convention
is not "necessary in a democratic society" within the meaning of
Article 8 para. 2 of the Convention.
THE LAW
The applicant complains that because of the withdrawal of his
permanent residence permit his family life is endangered. He invokes
Article 8 (Art. 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 notes that the withdrawal
of the applicant's permanent residence permit has resulted in his
separation from his wife and children and that it would involve
considerable hardship, in particular for the children, if they were to
follow the applicant to Turkey. Consequently, the withdrawal of the
permanent residence permit constituted an interference with his right
to respect for his 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 applicant's permanent residence permit
was decided in accordance with Section 14 para. 1(c) of the Aliens
Act. Given the nature and the seriousness of the drugs offences for
which the applicant was convicted in Germany and which had been
partially committed in the Netherlands, the Commission is satisfied
that the interference complained of was justified as a measure
necessary in a democratic society for the prevention of disorder or
crime (No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219; No. 9203/80, Dec.
5.5.81, D.R. 24 p. 239).
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
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)