AS TO THE ADMISSIBILITY OF
Application No. 11916/86
by J.S. and V.K.
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
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 21 November
1985 by J.S. and V.K. against the Netherlands
and registered on 6 January 1986 under file No. 11916/86;
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 first applicant, an Indian national, was born in 1957
and is at present living in Amsterdam.
The second applicant is the son of the first applicant. He
was born on 19 October 1983 in Amsterdam.
The applicants are represented before the Commission by
Mr. F.H. Koers, a lawyer practising in Amsterdam.
The facts, as submitted by the applicants, may be summarised
as follows:
After entering the Netherlands illegally on 25 September 1982,
the first applicant married a woman of Dutch nationality on
24 December 1982. On 30 December 1982, he applied for a residence
permit.
Sometime thereafter the marriage broke down. It is not
entirely clear when the actual breakdown of the marriage took place
and when the first applicant and his wife stopped living together.
On 23 February 1984 the Deputy Minister of Justice (Staatssecretaris
van Justitie) considered that the first applicant and his wife still
lived in the same house but that their marriage had broken down
already. The Judicial Division of the Council of State (Afdeling
Rechtspraak van de Raad van State) considered it established that the
actual breakdown of their marriage took place in February 1983 and
that they stopped living together that same month. The first
applicant has always maintained that he and his wife lived together
until August 1984 and that the actual breakdown of their marriage
took place at the same time.
On 19 October 1983, their son was born. In the course of the
divorce proceedings instituted by the wife of the first applicant in
August 1984, the child was provisionally awarded to his mother on
24 October 1984.
The first applicant's request for a residence permit was
rejected by the Deputy Minister of Justice on 23 February 1984. The same
authority also rejected a request for a review of this decision on
3 June 1985. The first applicant appealed against this decision on
8 July 1985 to the Judicial Division of the Council of State.
The Deputy Minister decided not to allow the first
applicant to await the decision of the Council of State in the
Netherlands. In summary civil proceedings, the first applicant
requested a court order that he would not be expelled from the
Netherlands before the final decision concerning his request for a
residence permit. On 25 July 1985, the President of the Regional
Court (Arrondissementsrechtbank) of Amsterdam refused to issue such an
order, inter alia, on the grounds that there existed no "family life",
within the meaning of Article 8 of the Convention, between the first
applicant and his child, and that the first applicant was not entitled
to lawful residence in the Netherlands pending the divorce
proceedings, in the course of which a decision would have to be made
on the guardianship over the child.
A further request that he not be expelled before a final
decision in the divorce proceedings as to the guardianship of the
child and the arrangement for visits to the child would be given
was rejected by the President of the Regional Court on
26 September 1985.
The Court of Appeal (Gerechtshof) of Amsterdam rejected the first
applicant's appeal against the first judgment of the President of the
Regional Court on 19 December 1985.
On 18 January 1985, during a hearing before the Regional Court
of Amsterdam concerning visiting rights between the first and the
second applicant, the first applicant declared that he had not seen
his son for four months. On 25 January 1985 the Regional Court
adopted a visiting arrangement concerning contacts between the first
and the second applicant during the divorce proceedings between the
first applicant and his wife. This provisional arrangement was
subsequently amended on 26 June 1985 and 15 October 1985, but each
arrangement provided that the first applicant was allowed to visit the
second applicant for one hour every two weeks. It appears that the
mother did not permit the visits to take place.
On 5 March 1986, the divorce was finally pronounced by the
Regional Court. A final arrangement for contacts between the first
applicant and his son was adopted by the same court on 8 September 1986,
allowing him to visit his son for one hour every month in the house of
the mother. In the same decision, the mother was appointed guardian
of the child. The first applicant was appointed co-guardian. It
appears that the mother has impeded any contact between the applicants
since then.
In the proceedings concerning the refusal of a residence
permit, the Judicial Division of the Council of State rejected the
first applicant's appeal on 11 September 1987. The Judicial Division
considered that there was no rule of aliens policy under which the
applicant was entitled to reside in the Netherlands and that a
residence permit could be refused under Section 11 para. 5 of the
Aliens Act (Vreemdelingenwet). Furthermore, the Council found that
insofar as the refusal of the residence permit interfered with the
first applicant's family life within the meaning of Article 8 of the
Convention, this interference was justified under the second paragraph
of Article 8, in particular on the ground of prevention of disorder.
In this respect, the Judicial Division considered that the interest
involved in the refusal of the residence permit outweighed the first
and second applicants' interest in the continuation of the contacts
between them, since the first applicant had not submitted any
information on the contents of his relationship with his child, apart
from the limited arrangement that was ordered by the Regional Court.
The first applicant has not yet been expelled.
COMPLAINTS
The applicants complain principally of a violation of their
right to respect for their family life, and, as a subsidiary
complaint, of a violation of their right to respect for their private
life, because the practical effects of an expulsion of the first
applicant would constitute a disruption of the links binding him and
his young child. They rely on Article 8 of the Convention, alone and
in conjunction with Article 14 of the Convention.
The first applicant also complains of a violation of Article 3
of the Convention in that an expulsion of the first aplicant, in view
of his parental relationship with his son and his personal, very
emotional bond with his son, would amount to inhuman treatment.
The applicants also allege that an expulsion of the first
applicant before an independent and impartial court has decided on the
guardianship over the child, would benefit his wife in the proceedings
concerned to such an extent that there could be no question of a fair
hearing within the meaning of Article 6 of the Convention.
Finally, the applicants complain that an expulsion of the
first applicant before the divorce proceedings have ended would
constitute a violation of Article 12 of the Convention, and, as a
subsidiary complaint, a violation of Article 12 in conjunction with
Article 14 of the Convention, since the first applicant has tried to save
as much as possible of the family life he has with his son in the divorce
proceedings and intends to found a family with his son, as far as is
possible under the circumstances of the divorce.
THE LAW
1. The first applicant has lodged several complaints both on his
own behalf and on behalf of his minor son.
Under Article 25 para. 1 (Art. 25-1) of the Convention the Commission is
only competent to examine an application lodged by a person claiming
to be the victim of a violation by one of the High Contracting Parties
of the rights set forth in the Convention.
However, in the present case the Commission notes that the
first applicant does not have the custody of his son, the guardianship
having been awarded to the mother. The first applicant, therefore, is
not empowered to act on his son's behalf on the basis of any authority
over the child. Moreover, the first applicant has failed to
demonstrate that he is otherwise entitled to represent his son with
respect to this application.
Consequently, the Commission is of the opinion that the first applicant
is not competent under Article 25 (Art. 25) of the Convention to bring any
complaints on behalf of his son and it follows that this part of the
application is incompatible ratione personae with the provisions of the
Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention (No. 8045/77, Dec. 4.5.79, D.R. 16 p. 105).
2. The first applicant complains that his expulsion would amount to an
unjustified interference with the right to respect for his family life. In
particular, he alleges that an expulsion results in the breaking of the bonds
existing between him and his son.
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, 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. 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. No. 6357/73, Dec. 8.10.74, D.R. 1
p. 77; No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 national security, public safety or the economic
well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others."
The Commission does not need to take a decision as to whether
the relationship between the first applicant and his son constituted family
life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention since
any interference with the first applicant's family life would anyway be
justified under Article 8 para. 2 (Art. 8-2) of the Convention for the
following reasons:
The Commission notes that the decision of the Deputy Minister of
Justice not to grant the first applicant a residence permit was taken in
accordance with Section 11 para. 5 of the Dutch Aliens Act. It was, therefore,
taken in accordance with Dutch law.
Furthermore, the decision was consistent with Dutch immigration-control
policy and could therefore be regarded as having been taken for a legitimate
purpose, viz. the preservation of the country's economic well-being within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention.
The question which remains to be answered is whether or not the
decision was "necessary in a democratic society".
In determining whether an interference was "necessary in a democratic
society" allowance should be made for the margin of appreciation that is left
to the Contracting States (Eur. Court H.R., W v. the United Kingdom judgment
of 8 July 1987, Series A No. 121 - A, p. 27, para. 60 (b) and (d); Eur. Court
H.R., Olsson judgment of 24 March 1988, Series A No. 130, pp. 31-32, para. 67).
In this connection, the Commission accepts that the Convention does not
in principle prohibit the Contracting States from regulating the entry and
length of stay of aliens. According to the Commission's and the Court's
established case-law (see, inter alia, the judgments previously cited),
however, "necessity" implies that the interference corresponds to a pressing
social need and, in particular, that it is proportionate to the legitimate aim
pursued.
Having to ascertain whether this latter condition was satisfied in the
instant case, the Commission observes, firstly, that its function is not to
pass judgment on Netherlands immigration and residence policy as such. It has
only to examine the interference complained of and it must do this not solely
from the point of view of immigration and residence, but also with regard to
the mutual interest of the first applicant and his son in continuing their
relations. The Commission considers that the legitimate aim pursued has to be
weighed against the seriousness of the interference with the first applicant's
right to respect for his family life. As to the aim pursued the
Commission notes that the first applicant had entered the Netherlands
illegally. He had never been granted a residence permit.
As to the extent of the interference, the Commission notes that the
final arrangement for contacts between the first applicant and his son adopted
by the Regional Court provided for a visit for one hour every month. It
appears, however, that in fact the first applicant and his son have not had any
contacts since September 1986.
Having regard to these circumstances, the Commission finds no
indication that in reaching their decisions on this matter the Dutch national
authorities and Court struck an unfair balance between the conflicting
interests at issue.
To the extent that there was an interference with the first applicant's
right under Article 8 para. 1 (Art. 8-1) of the Convention such interference
was justified under paragraph 2 of Article 8 (Art. 8-2) of the Convention.
It follows that the application, in this respect, is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The first applicant further complains that his expulsion before a final
judicial decision as to the guardianship over the child would deprive him of
the right to a fair trial in those proceedings. He alleges a violation of
Article 6 (Art. 6) in this respect.
The Commission notes that on 8 September 1986, the Amsterdam Regional
Court took a final judicial decision as to the guardianship, appointing the
mother of the second applicant as his guardian. At the time of this decision,
no expulsion of the first applicant had taken place.
If follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The first applicant also complains of violations of Article 8 (Art. 8)
insofar as it guarantees his right to respect for private life and of Articles
8 and 12 in conjunction with Article 14 (Art. 8, 12+14) of the Convention. He
makes a separate complaint alleging a violation of Article 3 (Art. 3) of the
Convention.
However, the Commission is not required to decide whether or not the
facts alleged by the first applicant disclose any appearance of a violation of
these provisions as, under Article 26 (Art. 26) of the Convention, it may only
deal with a matter after all domestic remedies have been exhausted according to
the generally recognised rules of international law. The mere fact that the
first applicant has submitted his case to the various competent courts does not
of itself constitute compliance with this rule. It is also required that the
substance of any complaint made before the Commission should have been raised
during the proceedings concerned. In this respect the Commission refers to its
constant jurisprudence (see e.g No. 1103/61, Yearbook 5, pp. 168, 186; No.
5574/72, Dec. 21.3.75, D.R. 3, pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37.
pp. 113, 120).
In the present case the first applicant did not raise, either in form
or in substance, in the proceedings before the Judicial Division of the Council
of State, the complaints which he now makes before the Commission. Moreover,
an examination of the case does not disclose the existence of any special
circumstances which might have absolved the first applicant, according to the
generally recognised rules of international law, from raising these complaints
in the proceedings referred to.
It follows that the first applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of his application must
be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)