FIRST SECTION
CASE OF CILIZ v. THE NETHERLANDS
(Application no. 29192/95)
JUDGMENT
STRASBOURG
11 July 2000
This judgment is subject to editorial revision before
its reproduction in final form in the official reports of selected judgments
and decisions of the Court.
In the case of Cılız v. the Netherlands,
The European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mrs E. Palm, President, Mrs W. Thomassen, Mr L. Ferrari
Bravo,
Mr R.
Türmen, Mr C. Bîrsan, Mr J. Casadevall,
Mr R. Maruste, judges, and Mr M. O'Boyle, Section Registrar,
Mr R. Maruste, judges, and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 30 November 1999 and
27 June 2000,
Delivers the following judgment, which was adopted on
the last-mentioned date:
PROCEDURE
SEQ. The case was referred to the Court by the European
Commission of Human Rights (“the Commission”) on 24 November 1998 and by the
Government of the Netherlands (“the Government”) on 15 January 1999, within the
three-month period laid down by former Articles 32 § 1 and 47 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”). It originated in an application (no. 29192/95) against the
Kingdom of the Netherlands lodged with the Commission under former Article 25
of the Convention by a Turkish national, Mr Mehmet Cılız (“the applicant”), on
6 November 1995.
The Commission's request referred to former Articles
44 and 48 and to the declaration whereby the Netherlands recognised the compulsory
jurisdiction of the Court (former Article 46). The object of the request was to
obtain a decision as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 8 of the Convention.
SEQ. On 14 January 1999 a panel of the Grand Chamber
decided, pursuant to Article 5 § 4 of Protocol No. 11 to the Convention and
Rules 100 § 1 and 24 § 6 of the Rules of Court, that the application would be
examined by one of the Sections. It was, thereupon, assigned to the First
Section.
SEQ. The Chamber constituted within that Section included
ex officio Mrs W. Thomassen, the judge elected in respect of the
Netherlands (Article 27 § 2 of the Convention and Rule 26 § 1 (a) of the Rules
of Court) and Mrs E. Palm, President of the Section (Rules 12 and 26 § 1 (a)).
The other members designated by the latter to complete the Chamber were Mr J.
Casadevall, Mr L. Ferrari Bravo, Mr R. Türmen, Mr C. Bîrsan and Mr R. Maruste.
SEQ. On 6 July 1999 the Chamber decided to hold a
hearing.
SEQ. In accordance with Rule 59 § 3 the President of the
Chamber invited the parties to submit memorials on the issues in the
application. No memorial was submitted by the applicant. The Registrar received
the Government's memorial on 23 April 1999. In addition, third-party comments
were received from the Government of the Republic of Turkey, which had
exercised its right to intervene (Article 36 § 1 of the Convention and Rule 61
§ 2). The respondent Government replied to those comments (Rule 61 § 5).
SEQ. The hearing took place in public in the Human Rights
Building, Strasbourg, on 30 November 1999 (Rule 59 § 2).
There appeared before the Court:
(a) for the respondent Government
Ms J. Schukking, Agent,
Ms L. Ling Ket On,
Mr J. Struyker Boudier,
Mr J. Raukema,
Ms M. Koeman, Advisers;
Ms J. Schukking, Agent,
Ms L. Ling Ket On,
Mr J. Struyker Boudier,
Mr J. Raukema,
Ms M. Koeman, Advisers;
(b) for the applicant
Ms G. Later, Counsel;
Ms G. Later, Counsel;
(c) for the Government of Turkey
Mrs D. Akçay, Co-Agent,
Mrs D. Akçay, Co-Agent,
The Court heard addresses by Ms Schukking, Ms Later
and Ms Akçay.
SEQ. By letter of 21 December 1999 the Government
submitted a copy of the decision of the Utrecht Regional Court of 15 December
1999 in the applicant's case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
SEQ. The applicant came to the Netherlands on 31 March
1988 where he married a Turkish woman on 29 December 1988. Upon his request he
was granted a residence permit by the head of the Utrecht police on 14 February
1989 which enabled him to live with his spouse and to work in the Netherlands.
This residence permit was valid for one year and, on 5 April 1990, the
applicant was given a document showing that as a result of his marriage he was
allowed to reside in the Netherlands indefinitely.
SEQ. On 27 August 1990, a son, Kürsad, was born to the
applicant and his wife.
seq. The applicant and his wife separated in November
1991 and divorce proceedings were initiated. As the applicant's right to reside
in the Netherlands indefinitely had been dependent on his being married and
cohabiting with his spouse, he lost this right ex jure from the moment
of separation. On 24 January 1992, the applicant applied for and was granted an
independent residence permit in order to work in the Netherlands pursuant to
the relevant provisions of the Aliens Circular (Vreemdelingencirculaire;
see paragraphs 40-42 below). This permit was valid for one year.
seq. In the period immediately following the separation
the applicant made no attempt to see Kürsad, but at a later stage he requested
the Utrecht Regional Court (Arrondissementsrechtbank) to establish an
arrangement concerning parental access (omgangsregeling – “formal access
arrangement”). The Regional Court requested the Child Care and Protection Board
(Raad voor de Kinderbescherming) to investigate the feasibility of such an
arrangement.
seq. In its report of 18 January 1993, the Child Care and
Protection Board stated that after an initial refusal to co-operate in a formal
access arrangement, the mother had agreed for the applicant to meet Kürsad
several times on a provisional basis at the maternal grandparents' house but
that the applicant had failed to contact the Board. The Board concluded that
the applicant's situation had not become sufficiently clear and for this reason
the Board found that a formal access arrangement would not be appropriate.
seq. The applicant requested a prolongation of his
residence permit in order to work in the Netherlands from the head of the
Utrecht police on 11 January 1993. At this time the applicant was in receipt of
unemployment benefits and for this reason his request was rejected on 3
February 1993. As regards Article 8 of the Convention, the head of the Utrecht
police considered, inter alia, that since it appeared that the applicant
had no regular contacts with his son there was no family life between them
within the meaning of this provision. In this respect it was held that the
applicant's claim that it was not his fault that no regular contacts took place
could not be taken into account, since regard could only be had to the factual
situation. Furthermore, even assuming there was family life between the
applicant and his son, an interference with the right to respect for this life
would, according to the head of the Utrecht police, be justified under
paragraph 2 of Article 8.
seq. The applicant requested the State Secretary for
Justice (Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien)
the decision of the head of the Utrecht police. He submitted that he was in the
process of obtaining a permanent employment contract. He conceded that at
present the contacts with Kürsad had not yet been regularised but that the
Regional Court of Utrecht was expected to examine and to grant a request for a
formal access arrangement shortly afterwards.
seq. The applicant's marriage was officially dissolved on
17 March 1994.
seq. On 15 July 1994, the applicant was heard by the
Advisory Commission for Aliens' Affairs (Adviescommissie voor Vreemdelingenzaken).
The applicant stated that since February 1993 he had visited Kürsad between one
and three times a week.
seq. The Advisory Commission proposed to the State
Secretary for Justice that the applicant's request for revision be rejected.
Even though it considered that there was family life between the applicant and
Kürsad and that the refusal to grant the applicant continued residence in the
Netherlands would constitute an interference with the applicant's right to
respect for his family life, the Advisory Commission held that this
interference was justified for the protection of the economic well-being of the
country. In this respect the Advisory Commission considered that the applicant
was in receipt of unemployment benefits. Although it might be true that these
benefits would be withdrawn in view of the applicant's contract as a stand-by
employee in the clothing industry, the Advisory Commission did not regard these
activities as serving an essential national interest since it had appeared that
on the Netherlands labour market other people, having priority over the
applicant, were available for this kind of work.
seq. The Advisory Commission further took into account
that the applicant had only lived with Kürsad for eighteen months, that he saw
Kürsad irregularly and briefly, and that he contributed irregularly to the
costs of Kürsad's upbringing and education.
seq. In line with the opinion of the Advisory Commission,
the State Secretary for Justice rejected the applicant's request for revision
on 6 October 1994.
seq. The applicant filed an appeal against the decision
of 6 October 1994 with the Aliens' Division (Vreemdelingenkamer) of The
Hague Regional Court sitting in Amsterdam (nevenzittingsplaats Amsterdam)
on 31 October 1994. He submitted, inter alia, that contrary to what the
Advisory Commission had held, he had an intense relationship with Kürsad.
seq. Meanwhile, following a hearing on 25 November 1994,
the Utrecht Regional Court on 24 January 1995 appointed the applicant's former
wife as guardian (voogdes) and the applicant as auxiliary guardian (toeziend
voogd) of Kürsad. It further ordered that as a contribution to the costs of
the maintenance and education of Kürsad, the applicant should pay to the mother
any child benefits he might receive under the statutory regulations. In view of
the circumstances and the relationship between the parties the Regional Court
found it inappropriate, however, to lay down in a formal access arrangement the
varying contacts which the applicant was having with Kürsad at that time. The
Regional Court assumed in this respect that the contacts which the applicant
had had and was still having with Kürsad would be continued in the future; it
added that, as part of the upbringing of the child, it was incumbent on the
mother to ensure that these contacts between father and child took place.
seq. The applicant filed an appeal with the Amsterdam
Court of Appeal (Gerechtshof) against the decision of the Utrecht
Regional Court not to establish a formal access arrangement. A hearing took
place on 19 April 1995, during which the applicant's former wife stated that
she was not willing to cooperate in a formal access arrangement, since she felt
that the applicant only wished to have such an arrangement established in order
to obtain a right to reside in the Netherlands. Furthermore, she did not
believe that the applicant was capable of maintaining regular contacts with
Kürsad and submitted that irregular contacts would not be conducive to the
boy's well-being.
seq. On 10 May 1995, a hearing took place before the
Hague Regional Court sitting in Amsterdam on the appeal filed by the applicant against
the rejection of his request for revision of the decision not to prolong his
residence permit. The Regional Court rejected the appeal by decision of 24 May
1995. It held that the refusal to grant the applicant continued residence in
the Netherlands constituted a justified interference with his family life. The
Regional Court considered in this respect, inter alia, that the Utrecht
Regional Court had rejected the applicant's request to establish a formal
access arrangement. It found, furthermore, that the contacts between the
applicant and Kürsad were irregular and short and that the applicant did not
contribute regularly to the costs of his son's maintenance and education. The
Regional Court further held that the economic well-being of the country should
be taken into account as well. It noted that the applicant had submitted an
employment contract from which it appeared that his probationary period had not
yet been concluded and that, in any event, there was a sufficient amount of
work force with priority over the applicant available on the Netherlands labour
market for the kind of work the applicant was employed to do.
seq. When this decision was sent to the applicant, that
is, on 26 June 1995, the applicant's probationary period had come to an end and
he was in possession of a contract of employment for an indefinite period.
SEQ. As regards the applicant's request for the
establishment of a formal access arrangement, the Court of Appeal decided in an
interlocutory judgment of 1 June 1995 to adjourn these proceedings. The Court
found that at the present time there was insufficient reason to deny the
applicant right of access to his son. As it was not clear to what extent the
applicant was genuinely interested in Kürsad the Court of Appeal requested the
Child Care and Protection Board to organise a number of supervised trial
meetings between the applicant and Kürsad in order to have the applicant's
motives clarified.
seq. On 19 September 1995, the applicant was informed
that the Court of Appeal had further adjourned the proceedings until 3 December
1995 in view of the heavy workload of the Child Care and Protection Board. By
letter of 16 October 1995, the applicant asked the Court of Appeal whether a
different organisation might be appointed to organise the trial meetings as he
wished to see Kürsad and a further delay would be detrimental to both the
applicant and the child.
seq. On 31 October 1995, the applicant was placed in
detention with a view to his expulsion (vreemdelingenbewaring).
seq. On 2 November 1995, the applicant again requested a
residence permit in order to work in the Netherlands, to be able to be with his
child and for reasons of a compelling humanitarian nature. On this occasion he
told the head of police that as of February 1995 he had stopped contributing
financially to his son's maintenance since his former wife no longer allowed
him to see Kürsad.
seq. The first trial meeting between the applicant and
Kürsad, organised by the Child Care and Protection Board, took place on 3
November 1995 at the offices of this organisation. Since the applicant was
still in detention, he was accompanied by two police officers who observed the
meeting between the applicant and Kürsad from a different room.
seq. On 7 November 1995, the applicant's representative
contacted the officer of the Child Care and Protection Board who had also been
present at the meeting between the applicant and his son. In the opinion of
this officer, the meeting had gone well given the circumstances under which it
had taken place. Although father and son initially had had to re-accustom
themselves to being together, it had been clear that Kürsad knew his father and
was familiar with him. After the meeting Kürsad had spontaneously gone to the
window to wave to the applicant. The officer submitted as her opinion that
another trial meeting should be organised by the Board, perhaps in the presence
of a psychologist, following which the possibility of a supervised access
arrangement should be considered.
seq. The applicant's request of 2 November 1995 for a
residence permit was rejected by the State Secretary for Justice on 6 November
1995. The State Secretary held that no relevant new facts had been adduced by
the applicant. On the basis of the information submitted by the police officers
who had observed the meeting between the applicant and Kürsad on 3 November 1995,
the State Secretary considered furthermore that it had not appeared that the
relationship between the applicant and his son at the present time was
meaningful, mutual or anything more than shallow and neither was it
realistically foreseeable that a closer relationship would develop.
seq. The applicant filed an objection (bezwaar)
against the refusal of a residence permit with the State Secretary for Justice
on 6 November 1995. He submitted, inter alia, that proceedings
concerning access to his son were still pending before the Amsterdam Court of
Appeal and that the trial meeting which had been ordered by the Court of Appeal
on 1 June 1995 had only taken place as late as 3 November 1995. Given the fact
that at that time the applicant had been in detention, it was unreasonable to
expect that this meeting between the applicant and Kürsad would give a true
impression of the nature of the relationship between them. The applicant also
requested an interim measure from the President of the Hague Regional Court
sitting in Amsterdam.
seq. The applicant was expelled to Turkey on 8 November
1995.
SEQ. On 7 March 1996 the President of the Regional Court
rejected both the objection which the applicant had filed against the refusal
of a residence permit and the request for an interim measure.
seq. The appeal proceedings concerning the formal access
arrangement before the Amsterdam Court of Appeal were adjourned for some time
and finally continued in the absence of the applicant who had not been granted
an entry visa in order to attend either more trial meetings or the hearing
before the Court of Appeal. On 7 May 1998 the Court of Appeal confirmed the
decision of the Utrecht Regional Court not to lay down a formal access
arrangement (see paragraph 21 above). Having regard to the report of the Child
Care and Protection Board of 18 January 1993 (see paragraph 12 above), the fact
that Kürsad and his father had not seen each other since November 1995, that it
had not been possible for the trial meetings – except for the one of 3 November
1995 – to take place within a reasonable time, the uncertainty as to whether
the father would come to the Netherlands and stay there temporarily, the
continued doubt as to whether the father was capable of maintaining regular
contacts with Kürsad and the continuing tension in respect of the father's
uncertain situation, the Court of Appeal considered that such an arrangement
would be contrary to the compelling interests of the child.
SEQ. The applicant lodged an appeal on points of law
against this decision with the Supreme Court (Hoge Raad) which was
rejected on 16 April 1999.
SEQ. Meanwhile, on 5 January 1999, the applicant re-entered
the Netherlands with a visa valid for three months. He submitted a new
application for a formal access arrangement to the Utrecht Regional Court on 25
January 1999, arguing that there had been a change of circumstances since the
decision of the Court of Appeal of 7 May 1998 (see paragraph 35 above) in that
he was currently in the Netherlands and had employment. Following a hearing on
23 February 1999, during which Kürsad's mother stated that the boy did not want
to see the applicant, the Regional Court requested the Child Care and
Protection Board to examine whether it would be in Kürsad's best interests to
be brought into contact with his father.
SEQ. On 15 December 1999 the Regional Court rejected the
applicant's request for a formal access arrangement and denied him the right of
access to his son. It noted the conclusion reached by the Child Care and
Protection Board, after another trial meeting had taken place, to the effect
that the interests of the child militated against access since Kürsad had
displayed strong opposition to the idea and the applicant had not proved able
to overcome this opposition. The applicant has lodged an appeal against this
decision, which proceedings are currently still pending.
II. RELEVANT DOMESTIC
LAW AND PRACTICE
A. Admission, residence and expulsion
SEQ. Under section 11(2) of the Aliens Act (Vreemdelingenwet)
residence permits granted for a specific purpose, such as family reunification
or family formation, can be granted subject to restrictions relating to that
purpose. If the purpose for which the permit was granted is no longer complied
with, the residence permit may be revoked pursuant to section 12(d) of the
Aliens Act, and prolongation may be refused pursuant to section 11(5) of the
Act on grounds relating to the public interest. An alien who has been granted
entry to the Netherlands but is not or is no longer eligible for admission is
under an obligation to leave the country pursuant to section 15(d)(2). If he or
she does not leave voluntarily, expulsion may follow (section 22).
SEQ. The Netherlands authorities pursue a restrictive
immigration policy in view of the high population density. Admission is only
granted on the basis of treaty obligations, if the individual's presence serves
an essential national interest or if there exist compelling reasons of a
humanitarian nature. This policy is laid down, inter alia, in the
“Circular on Aliens” (Vreemdelingencirculaire – “the Circular”): a body of
directives drawn up and published by the Ministry of Justice.
SEQ. At the relevant period, the requirements for
admission of aliens for the purpose of family reunification and family
formation, and for continued residence after separation, were laid down in
Chapter B19 of the 1982 Circular. Aliens married to either a Netherlands
national, a recognised refugee or a holder of a permanent residence permit (vestigingsvergunning)
acquired, after one year of legal residence, ex jure an indefinite right
to remain pursuant to section 10(2) of the Aliens Act. This right expired ex
jure when the spouses no longer cohabited.
SEQ. Pursuant to Article 4.3 paragraphs (a) and (d) of
Chapter B19 of the 1982 Circular an alien whose marriage had lasted for at
least three years before it broke down could be granted one year's residence
from the date of the de facto breakdown of the marriage, subject to the
restriction “for the purpose of finding work, in paid employment or self-employed”.
During this year, dependence on social security or unemployment benefits would
not be held against the alien. When assessing an application for a subsequent
prolongation of the residence permit, the authorities had to determine whether
the person concerned was in paid employment or was self-employed, and would
continue to be so for at least another year, regardless whether this durable
income was obtained from work in a sector where there were sufficient nationals
of European Union member States or aliens residing lawfully in the Netherlands
available to fill all vacancies. Where no such employment existed for another
year, the right of continued residence would be denied. Employment found
subsequently would not change that decision unless that work served an
essential national interest.
SEQ. Respect for family life as enshrined in Article 8 of
the Convention constitutes one of the treaty obligations which may lead to the
granting of admission or continued residence (see paragraph 40 above). Article
1.2 of Chapter B19 of the 1982 Circular provided in this respect that where an
alien was not eligible for (continued) residence on the basis of the applicable
rules, the question whether a refusal of (continued) residence was in accordance
with Article 8 of the Convention should always be examined. Similarly, Article
4.4 of Chapter B19 of the 1982 Circular stipulated that in the decision whether
or not to grant continued residence, regard should be had to the individual's
family life within the context of Article 8 of the Convention.
B. Access to children following divorce
SEQ. Article 377a of Book 1 of the Civil Code (Burgerlijk
Wetboek) regulates access between a child and the parent who was not
awarded parental responsibility following the divorce, as well as the grounds
on which access can be denied. This provision, in so far as relevant, reads as
follows:
“1. A child and
a parent on whom parental responsibility has not been conferred shall have the
right of access to each other.
2. At the request of one or both parents,
the court shall establish an arrangement, for an indefinite period or
otherwise, for the exercise of the right of access, or shall deny the right of
access, for an indefinite period or otherwise.
3. The court
shall deny the right of access only if:
a. access would seriously damage the
child's psychological or physical development;
b. the parent is clearly incapable or must
clearly be deemed incapable of access;
c. when interviewed, a child over the age
of 12 has indicated serious objections to access;
d. access would be contrary in some other
way to the compelling interests of the child.
...”
SEQ. If the parents disagree about the access
arrangement, the courts request the Child Care and Protection Board for a
report. Where the father has seen the child only occasionally since the child
was very young and the parents are in dispute about the question of access, the
Board may organise a number of meetings on Board premises, in order to
determine how the child responds to the father and how the father treats the
child. Such observations are then used to decide on the request for an access
arrangement.
proceedings before the
commission
SEQ. The applicant applied to the Commission on 6
November 1995. He maintained that the authorities' refusal to grant him
continued residence and his subsequent expulsion had infringed Articles 3, 8
and 14 of the Convention.
SEQ. On 27 June 1996 the Commission declared the
complaints under Articles 3 and 14 inadmissible, and on 22 October 1997 it
declared the complaint under Article 8 admissible.
SEQ. In its report of 20 May 1998, the Commission
expressed the unanimous opinion that there had been a violation of Article 8 of
the Convention.
THE LAW
I. alleged
violation of article 8 of the Convention
SEQ. The applicant complained that the refusal by the
Netherlands authorities to extend his residence permit infringed Article 8 of
the Convention, which provides:
“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.”
A. Arguments before the Court
1. The applicant
SEQ. At the hearing, the representative of the applicant
argued that the expulsion of the applicant and the decisions taken subsequently
by the Netherlands authorities constituted an interference with the applicant's
right to respect for his family life with his son. This interference could not
be justified under the second paragraph of Article 8.
SEQ. Although it was true that following the separation
from his wife in November 1991 the applicant had gone through a period of
psychological difficulties during which he had had no contact with his son,
from early 1993 until January 1995 he had seen Kürsad between one and three
times a week. Moreover, he had also contributed financially to Kürsad's
upbringing during this time. It had been Kürsad's mother who had interpreted
the refusal of the Utrecht Regional Court of 24 January 1995 to establish a
formal access arrangement as constituting a denial of the applicant's right to
access, despite that court's instructing her to assure the continuation of the
existing contacts between her son and his father. Nevertheless, the one trial
meeting that had taken place before the applicant was expelled had illustrated
that even after a period of ten months during which they had not seen each
other, the contact between the applicant and Kürsad was good.
SEQ. Instead of putting the interests of the child first
in the decision-making process there had been a lack of coordination on the
part of the administrative and judicial bodies involved, and as a result the
subsequent trial meetings which had been ordered by one authority could not
take place because the applicant had been expelled and been refused a visa to
return on account of decisions taken by other authorities.
2. The respondent Government
SEQ. The respondent Government asserted that the present
case should be distinguished from the case of Berrehab v. the Netherlands
(judgment of 21 June 1988, Series A no.
138), with which the Commission had sought to compare it, on two clear grounds.
In the first place, the interest of the economic well-being of the country
carried more weight in the instant case in view of the fact that the applicant
had been in receipt of welfare benefits on expiry of the one year period which
he had been granted to find employment. Furthermore, the applicant had only
irregularly made financial contributions to the care and upbringing of his son.
Mr Berrehab, on the other hand, had been gainfully employed and was bearing
part of the costs of his daughter's care and upbringing (ibid., pp. 8-9, §§ 8
and 9).
Secondly, contrary to the situation in the Berrehab
case, the circumstances of the present case did not disclose the existence of
close family ties between the applicant and his son which were severed upon the
expulsion of the applicant. After leaving the marital home when his son was 15
months old, the applicant only ever had contacts with the child on an irregular
basis, whereas Mr Berrehab saw his daughter four times a week for several hours
at a time (ibid., p. 14, § 21).
SEQ. In the submission of the respondent Government, it
would go beyond a State's obligations under Article 8 of the Convention to
allow an alien to remain on its territory in order to give him the chance to
try and develop close ties with his child in the absence of concrete
indications that within a certain period of time the development of such ties
might materialise, bearing in mind that in the past years the person concerned
had hardly shown a genuine interest in the upbringing and well-being of the
child and had hardly maintained any factual family ties at all.
3. The Commission
SEQ. In the opinion of the Commission, the facts of the
case did not establish unequivocally that the applicant did not value the contacts
with his son or that their relationship was only of a shallow nature. The
Commission was struck in this respect by the fact that the applicant was
expelled at a moment when the official investigation into the closeness of the
ties between father and son had not yet been concluded, and that he was
subsequently denied an entry visa allowing him to take part in the proceedings
concerning access. It concluded that, in violation of Article 8 of the
Convention, the respondent State had failed to strike a fair balance between
the interest of the applicant and his son in continued contact and the general
interest of the economic well-being of the country.
4. The Government of Turkey
SEQ. The Government of Turkey observed in the first place
that the rights guaranteed by Article 8 of the Convention did not only apply to
aliens residing lawfully in a Contracting State. In their view, the
interference with the applicant's right to respect for his family life was not
in accordance with the law as required by Article 8 § 2 of the Convention. The
legal provisions in force attached consequences to an alien's right to remain
in the Netherlands after he had stopped cohabiting with his spouse - even
before a divorce had been pronounced - without making any allowances for the
family ties between the alien and his children born from the marriage.
SEQ. The Government of Turkey further noted that it was
only the economic well-being of the country that had militated in favour of the
applicant's expulsion. However, in their submission this concept had undergone
important changes since the time of economic hardship in the post-Second World
War era during which the Convention had been drawn up. Given the current trend
of economic deregulation and in view of the abolition of all restrictions on
immigration when it comes to nationals of member States of the European Union,
the protection of the country's economic well-being could no longer carry such
overriding importance as to outweigh the interests of the applicant in
continued contact with his son.
SEQ. The impugned measure was, moreover,
disproportionate. Not only did it bring to an end all possibilities for the
father to have normal access to his son, the child had also been at an age
where the fear of abandonment was at its strongest and could have serious
consequences for his future development.
B. The Court's assessment
1. Whether the bond between the applicant
and his son amounted to “family life”
SEQ. Having regard to its previous case-law the Court
observes that there can be no doubt that a bond amounting to family life within
the meaning of Article 8 § 1 of the Convention exists between the parents and
the child born from their marriage-based relationship, as was the case in the
present application. Such natural family relationship is not terminated by
reason of the fact that the parents separate or divorce as a result of which
the child ceases to live with one of its parents (see the Berrehab judgment
cited above, p. 14, § 21, and the Keegan v. Ireland judgment of 26 May 1994,
Series A no. 290, p. 19, § 50; see also Irlen v. Germany, application no.
12246/86, Commission decision of 13 July 1987, Decisions and Reports 53, p. 225).
SEQ. Clearly, in the present case the relationship
between the parents following their separation was not as harmonious with
respect to the matter of the father's access to his child as in the case of
Berrehab. Neither can it be said that the applicant demonstrated at all times
to what extent he valued meetings with his son. It thus appears that during the
period immediately following the separation, the applicant made no attempt to
see his son and that, when he did express a desire to meet with him, he failed
to keep appointments with the relevant authorities (see paragraphs 11-12
above).
Nevertheless, contact was re-established from February
1993 and there then followed a period during which meetings took place between
the applicant and his son, if not on a regular basis, then at least with some
frequency.
The applicant also applied to the courts on a number
of occasions in order to have the matter of access determined, and in its
decision of 24 January 1995 the Utrecht Regional Court indicated that it
assumed that the existing contacts between the applicant and his son would
continue (see paragraph 21 above).
In view of the above, the Court considers that the
events subsequent to the separation of the applicant from his wife did not
constitute exceptional circumstances capable of breaking the ties of “family
life” between the applicant and his son (see, amongst other authorities, the
Ahmut v. the Netherlands judgment of 28 November 1996, Reports of Judgments
and Decisions 1996-VI, p. 2030, § 60). Indeed, no argument to that effect
has been put forward.
2. Whether the case concerns an
“interference” with the exercise of the applicant's right to respect for his
“family life” or a failure to comply with a positive obligation
SEQ. The Court reiterates that the essential object of
Article 8 is to protect the individual against arbitrary action by the public
authorities. There may in addition be positive obligations inherent in
effective “respect” for family life. However, the boundaries between the
State's positive and negative obligations under this provision do not lend
themselves to precise definition. The applicable principles are, nonetheless,
similar. In both contexts regard must be had to the fair balance that has to be
struck between the competing interests of the individual and of the community
as a whole; and in both contexts the State enjoys a certain margin of
appreciation (see the Ahmut judgment cited above, p. 2031, § 63).
SEQ. In fact, the instant case features both types of
obligation: on the one hand, a positive obligation to ensure that family life
between parents and children can continue after divorce (see, mutatis
mutandis, the Keegan judgment cited above, p. 19, § 50), and, on the other,
a negative obligation to refrain from measures which cause family ties to
rupture. The Court considers that the domestic authorities were in the process
of acquitting themselves of the former obligation to the extent that in the
proceedings relating to the establishment of a formal access arrangement the
feasibility and desirability of access were being examined. It was, however,
the decision not to allow the applicant continued residence and his subsequent
expulsion which frustrated this examination. It is for this reason that the
Court deems it most appropriate to view the case as one involving an allegation
of an “interference” with the applicant's right to respect for his “family
life”.
SEQ. This being so, the Court will next examine whether
this interference was “in accordance with the law”, had an aim or aims that is
or are legitimate under Article 8 § 2 and was “necessary in a democratic
society” for the aforesaid aim or aims.
3. “In accordance with the law”
SEQ. The Court has no difficulty in accepting that the
decision to refuse the applicant continued residence in the Netherlands had a
basis in domestic law. It notes in this respect that pursuant to Article 4.3
paragraphs (a) and (d) of Chapter B19 of the 1982 Circular on Aliens such
residence could be denied if, one year after the spouses had ceased to cohabit,
the individual concerned was either not in paid employment or was not
self-employed for at least another year. Article 4.4 stipulated, in addition,
that Article 8 of the Convention was to be taken into account in this decision
(see paragraphs 42-43 above). It is thus sufficiently clear that where the
authorities were of the opinion that a denial of continued residence did not constitute
an interference incompatible with Article 8, the presence of family members in
the Netherlands would not militate against expulsion.
4. Legitimate aim
SEQ. In the Court's view, the impugned measure was aimed
at the preservation of the economic well-being of the country and thus served a
legitimate aim within the meaning of the second paragraph of Article 8.
5. “Necessary in a democratic society”
SEQ. In determining whether an interference was
“necessary in a democratic society”, the Court will take into account that a
margin of appreciation is left to the Contracting States. It recalls in this
respect that the Convention does not in principle prohibit Contracting States
from regulating the entry and length of stay of aliens (see the Berrehab
judgment cited above, pp. 15-16, § 28). Nevertheless, the Court also reiterates
that, whilst Article 8 contains no explicit procedural requirements, the
decision-making process leading to measures of interference must be fair and
such as to afford due respect to the interests safeguarded by Article 8:
“[W]hat ... has
to be determined is whether, having regard to the particular circumstances of
the case and notably the serious nature of the decisions to be taken, the
parents have been involved in the decision-making process, seen as a whole, to
a degree sufficient to provide them with the requisite protection of their
interests. If they have not, there will have been a failure to respect their
family life and the interference resulting from the decision will not be
capable of being regarded as 'necessary' within the meaning of Article 8.” (see
the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28
and 29, §§ 62 and 64, and the McMichael v. the United Kingdom judgment of 24
February 1995, Series A no. 307-B, p. 55, § 87)
SEQ. Turning to the circumstances of the present case,
the Court has already noted (see paragraph 62 above) that two sets of
proceedings were running concurrently. While the Utrecht Regional Court
rejected the applicant's request for a formal access arrangement on 24 January
1995, the Hague Regional Court decided on 10 May 1995 on the question of the
applicant's continued residence in the Netherlands. In its judgment, the Hague
Regional Court referred to the decision whereby the applicant's request for the
establishment of a formal access arrangement had been refused, but the
stipulation of the Utrecht Regional Court that the existing contacts between
the applicant and his son should continue was apparently not taken into
consideration. Moreover, at that time, the applicant's appeal in the case
pertaining to an access arrangement was pending before the Amsterdam Court of
Appeal, before which court a hearing had taken place on 19 April 1995 (see
paragraphs 21-23 above).
SEQ. While the respondent Government argue that, prior to
his expulsion, the applicant had had ample time to demonstrate that close ties
existed between himself and his son and that he had failed to do so, the Court
observes that the domestic courts dealing with the request for a formal access
arrangement nevertheless deemed it appropriate to adopt a more cautious
approach. Recognising that the applicant was in principle entitled to access to
his son, the Amsterdam Court of Appeal ordered on 1 June 1995 that supervised
trial meetings were to be organised by the Child Care and Protection Board in
order to clarify the applicant's position vis-à-vis his son. This did
not, however, prevent the Netherlands authorities from taking the applicant
into detention on 31 October 1995 with a view to his expulsion without any such
trial meeting having taken place (see paragraphs 25 and 27 above). The Court,
like the Commission, observes that the delay in organising these trial
meetings, which was due to the workload of the Child Care and Protection Board,
can in no way be attributed to the applicant who in fact attempted to have
matters expedited by requesting that an organisation other than that Board be
appointed to make the necessary arrangements (see paragraph 26 above).
SEQ. The Court notes in addition that the applicant was
not convicted of any criminal offences warranting his removal from the
Netherlands (see the Berrehab judgment cited above, p. 16, § 29).
SEQ. The applicant was expelled shortly after a first
trial meeting had taken place. He was then refused a visa to return to the
Netherlands in order to attend either further trial meetings or the continuation
of the access proceedings before the Amsterdam Court of Appeal. In its decision
of 7 May 1998 not to establish an access arrangement the Amsterdam Court of
Appeal took into account, inter alia, the fact that the applicant had
not seen his son since the trial meeting two and a half years previously, that
no further trial meetings had taken place and that it was uncertain whether the
applicant would be coming to the Netherlands again (see paragraph 35 above).
SEQ. In the view of the Court, the authorities not only
prejudged the outcome of the proceedings relating to the question of access by
expelling the applicant when they did, but, and more importantly, they denied
the applicant all possibility of any meaningful further involvement in those
proceedings for which his availability for trial meetings in particular was
obviously of essential importance. It can, moreover, hardly be in doubt that
when the applicant eventually obtained a visa to return to the Netherlands for
three months in 1999, the mere passage of time had resulted in a de facto
determination of the proceedings for access which he then instituted (see the
W. v. the United Kingdom judgment cited above, p. 29, § 65). The authorities,
through their failure to coordinate the various proceedings touching on the
applicant's family rights, have not, therefore, acted in a manner which has
enabled family ties to be developed (see the Keegan judgment cited above, p.
19, § 50).
SEQ. In sum, the Court considers that the decision-making
process concerning both the question of the applicant's expulsion and the
question of access did not afford the requisite protection of the applicant's
interests as safeguarded by Article 8. The interference with the applicant's right
under this provision was, therefore, not necessary in a democratic society.
Accordingly, there has been a breach of that provision.
II. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
SEQ. Article 41 of the Convention provides:
“If the Court
finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
SEQ. The applicant claimed a sum of 136,360 Netherlands
guilders (NLG) for loss of earnings sustained in the thirty-nine
months between his arrest and resumption of his work following his return to
the Netherlands, the loss of the furnishings of his house in Utrecht he was
forced to leave behind, and travel and subsistence costs pertaining to
thirty-four visits to the Netherlands representation in Ankara.
The respondent Government rejected the applicant's
claims since, in their opinion, there was no causal link between the loss of
earnings and the alleged violation of the Convention, and the applicant had
been aware for some time that he had to leave the Netherlands and he could thus
have taken measures to secure his household effects. They further submit that
the claims in respect of visits to the Netherlands representation have neither
been specified nor substantiated.
SEQ. The Court perceives no causal link between the
breach of Article 8 and the losses allegedly suffered. There is therefore no
ground for compensation under this head.
2. Non-pecuniary damage
SEQ. The applicant submitted that he had suffered, and
continued to suffer, non-pecuniary damage. He left it to the discretion of the
Court to determine an amount of just satisfaction in this respect.
The respondent Government did not express a view on
this point, whereas the Government of Turkey considered that it would be
appropriate to award NLG 20,000.
SEQ. Taking its decision on an equitable basis, the Court
awards the applicant compensation in the amount of NLG 25,000.
B. Costs and expenses
SEQ. The applicant claimed an amount of NLG 18,200 for
lawyer's fees and costs incurred in bringing the application. He further
requested reimbursement, in the amount of NLG 4,352.50, of interpreter's fees
and costs relating to the proceedings in Strasbourg and the access proceedings
he instituted in January 1999.
The respondent Government expressed their willingness
to reimburse the costs of legal assistance reasonably involved in the
proceedings before the Commission and the Court.
SEQ. In relation to the claim for costs of legal
representation the Court, deciding on an equitable basis and having regard to
the details of the claims submitted by the applicant, awards him the sum of NLG
18,200 together with any value-added tax that may be chargeable, less the
amounts received by way of legal aid from the Council of Europe. The Court
further observes that the access proceedings commenced in January 1999 are
causally linked to the applicant's family rights and it therefore considers
that costs of interpretation incurred in those proceedings qualify for
compensation in the present context, as do the costs incurred in this respect
in the proceedings before the Commission and the Court. In respect of this
claim, therefore, the Court awards the applicant the sum of NLG 4,352.50.
C. Default interest
SEQ. According to the information available to the Court,
the statutory rate of interest applicable in the Netherlands at the date of
adoption of the present judgment is 6% per annum.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Holds that there has been a violation of
Article 8 of the Convention;
2. Holds
(a) that the
respondent State is to pay the applicant, within three months, for
non-pecuniary damage, NLG 25,000 (twenty-five thousand Netherlands guilders),
for legal costs NLG 18,200 (eighteen thousand two hundred Netherlands guilders)
together with any value-added tax that may be chargeable, less the amounts
received by way of legal aid from the Council of Europe, and, for interpretation
costs, NLG 4,352.50 (four thousand three hundred and fifty-two Netherlands
guilders fifty cents);
(b) that simple
interest at an annual rate of 6% shall be payable from the expiry of the
above-mentioned three months until settlement;
3. Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English,
and notified in writing on 11 July 2000, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Michael O'Boyle Elisabeth
Palm
Registrar President
Registrar President
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