AS TO THE ADMISSIBILITY OF
Application No. 13293/87
by S. and N. M.
against the Netherlands
The European Commission of Human Rights sitting in private
on 13 November 1987, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
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. 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 15 October 1987,
together with a request to apply Rule 36 of the Commission's Rules of
Procedure, on behalf of S. and N. M. by their grandparents
against the Netherlands and registered on the same day under file
N° 13293/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the decision of the Commission on
16 October 1987 to invite the parties to submit further information
on the application;
Having regard to the information submitted by the Government
on 4 November 1987 and to the applicants' reply received on
12 November 1987;
Having regard to the decision of the President on 4 November 1987
not to apply Rule 36 of the Rules of Procedure;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows.
The applicants are Moroccan citizens, the first born in 1978
and the second in 1980. They are at present living unlawfully in the
Netherlands and represented in the proceedings before the Commission
by Mr. B.G. van Haren, a lawyer practising in Zeist.
The applicants first entered the Netherlands with their father
in 1984. When a residence permit was denied to the father, they were
deported to Morocco on 28 March 1985.
The applicants' parents divorced on 25 January 1985. The
father, of whom the applicants allege that he is a psychopathic and
cannot take care of his children, conferred the custody under Moroccan
law to his mother on 30 August 1985. The applicants' grandmother, who
has a residence permit to live in the Netherlands, subsequently
brought the applicants to the Netherlands on 12 December 1985.
On 16 December 1985, the applicants requested a residence
permit which was refused on 12 September 1986. The Deputy Minister of
Justice (Staatssecretaris van Justitie) motivated her decision on the
ground that the applicants' mother could take care of them in Morocco,
and that the applicants never belonged to the family unit of their
grandparents. A request for review was rejected on 27 January 1987.
An appeal to the Council of State (Raad van State), which does not
have suspensive effect, is still pending.
The applicants then seized the President of the Regional Court
(Arrondissementsrechtbank) of Utrecht in injunction proceedings (kort
geding) to prevent their deportation pending the outcome of the
procedure before the Council of State. This request was rejected on
8 October 1987. An appeal against this decision before the Court of
Appeal (Gerechtshof) of Amsterdam is still pending.
The applicants are now in hiding.
Parties agree that the father's whereabouts are unknown, that
he does not have a steady residence in Morocco and that he is not a
legal resident in the Netherlands.
&_COMPLAINTS&S
1. The applicants, invoking Article 3 of the Convention, fear
that, in the case of deportation to Morocco, they will not receive an
adequate treatment. They submit that their mother does not want to
take care of them and has abandoned them in order to remarry. Their
father has no known address and is very ill.
2. The applicants fear that their deportation would put an end to
their family relations with their grandparents. They submit that they
are integrated in the Netherlands where they go to school. They
allege a violation of Article 8 should their deportation take place.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on
15 October 1987, together with a request for application of Rule 36
of the Commission's Rules of Procedure, in order to prevent the
applicants' deportation to Morocco.
On 16 October 1987, after a preliminary examination of the
admissibility of the application, the Commission decided to adjourn
its decision on the Rule 36 request and instructed the Secretary to
request the parties to submit further information in accordance with
Rule 42 para. 2 (a) of its Rules of Procedure.
The information submitted by the Netherlands Government
reached the Commission's Secretariat on 4 November 1987.
On the same day, the President of the Commission decided not
to apply Rule 36 of the Rules of Procedure.
The applicants' reply to the information provided by the
Government was received on 12 November 1987.
&_SUBMISSIONS OF THE PARTIES&S
A. The Government
The Netherlands Government intend to deport the applicants to
Morocco since their application for residence with their grandparents
has been rejected in two instances and the President of the Regional
Court of Utrecht decided that no suspensive effect should be given to
the decision of the Deputy Minister of Justice to deport the children.
The deportation will take place as soon as the two girls, who are in
hiding, have been found and measures are taken that they will be taken
care of as soon as they arrive in Morocco.
The mother of the children is willing to take care of the
children. The Netherlands Government received information from a
cousin of the mother, residing in the Netherlands, that the mother
would very much like to have her children back. Her family-in-law, in
particular the grandparents, however, do everything, including the use
of forged proof, to keep the girls with them in the Netherlands.
The Netherlands Government are quite sure that the mother can
and will take care of her daughters. Contacts between the Netherlands
Embassy in Morocco and the mother have been established. The former
will be responsible for the children the moment they set foot on
Moroccan soil, in order to hand them over to the custody of their
mother.
B. The applicants
The applicants contest the statements of the Government.
They repeat that their mother is unwilling to take them into her
new family and allege that she has only recently confirmed this by
telephone to the family in the Netherlands. The applicants submit
letters from their school doctor who observes that they were
neglected, uncared-for children with stunted growth when they arrived
in the Netherlands and that, at this day, the grandparents are their
'psychological parents'.
The applicants deny that they will be supported by their
mother. As for the undertaking of the Netherlands Government, which
does not specify any time-limit, the applicants maintain that it
cannot give any guarantee beyond the moment that they are handed over
to their mother, whilst the Moroccan Government have no public foster
plan for neglected children.
THE LAW
1. The Commission does not find it necessary to decide whether
the applicants' grandparents are able to lodge an application under
Article 25 (Art. 25) of the Convention on behalf of their
grandchildren, as the application is in any case inadmissible for the
following reasons.
2. The applicants fear that they will not receive adequate care
in Morocco given the fact that the mother repudiated them and that the
father has no known address and is very ill. They invoke Article 3
(Art. 3) of the Convention.
The Commission notes that the proceedings pending before the
Council of State against the decision of the Deputy Minister and
the proceedings before the Court of Appeal against the decision
of the President of the Regional Court have no suspensive effect and
that the applicants are susceptible to deportation as soon as they are
found. According to the Commission's constant case-law, remedies
which do not suspend the execution of the decision to expel an
applicant are not effective remedies within the meaning of Article 26
(Art. 26) of the Convention and need not be exhausted, where the
allegation is that of a breach of Article 3 (Art. 3) of the Convention
(No. 10760/84, Dec. 17.5.84, D.R. 38 p. 224).
The Commission refers to its case-law according to which the
right of a person not to be expelled or extradited is not as such
included among the rights and freedoms mentioned in the Convention but
that a deportation could, in certain exceptional circumstances, raise
an issue under Article 3 (Art. 3) where there is a serious reason to believe
that the person concerned will be subjected to treatment prohibited by
that provision in the receiving country (cf. No. 8581/79, Dec. 6.3.80,
D.R. 29 p. 48; No. 10479/83, Kirkwood v. the United Kingdom,
Dec. 12.3.84, D.R. 37 p. 158).
However, the Commission finds no indication that the
applicants would be subjected to such a treatment by reason of the
fact that, after an unfortunate divorce of their parents, they would
now be in the custody of their mother and live in their country of
origin where they have lived all but two years of their young lives
instead of living with their grandparents.
It is true that the applicants allege that their mother
repudiated them and is not willing to look after them.
The Government maintain that this allegation is false and only
shows the willingness of the grandparents to keep the applicants with
them against the wish of their daughter-in-law.
In any case, the applicants have failed to submit any evidence
that could substantiate this claim. The Commission does not consider
that this uncorroborated declaration constitutes satisfactory prima
facie evidence.
Moreover, the respondent Government have undertaken to take
care of the applicants until they can be handed over to their mother.
The Commission concludes that an examination of the complaint,
as it has been submitted, does not disclose any appearance of a violation
of Article 3 (Art. 3) of the Convention.
This part of the application is accordingly manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicants also complain that a new deportation would
disrupt their school and family life in the Netherlands. They invoke
Article 8 (Art. 8) of the Convention.
The Commission is not required to determine whether in this
respect domestic remedies have been exhausted in accordance with
Article 26 (Art. 26) of the Convention as it finds that this complaint
is in any event inadmissible as being manifestly ill-founded, for the
following reasons.
Firstly, the applicants entered the Netherlands secretly and
never received a residence permit. The Commission also notes that the
repeated migration of the applicants to and from Morocco was the
result of the family's own action, who brought the applicants
illegally to the Netherlands, this being an act for which the
Netherlands State cannot be held responsible (cf. No. 9105/80,
Dec. 6.7.81, not published).
Secondly the applicants, their parents being divorced, will be
sent to their mother with whom they lived previously. The Commission
finds no indication that the Netherlands authorities acted
inconsistently with the right to respect for family life guaranteed
in Article 8 (Art. 8) of the Convention in giving precedence to the mother,
being the person with the closest family tie. As already observed
above, there is no evidence before it that could substantiate the
allegation that the applicants' mother is unwilling to take care of
them.
It 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)