EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 29192/95

Mehmet Cĸlĸz

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-51)              3

A. The particular circumstances of the case

(paras. 16-46)              3

B. Relevant domestic law and practice

(paras. 47-51)              7

III. OPINION OF THE COMMISSION

(paras. 52-76)              9

A. Complaint declared admissible

(para. 52) 9

B. Point at issue

(para. 53) 9

C. As regards Article 8 of the Convention

(paras. 54-75)              9

CONCLUSION

(para. 76) 13

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              14

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              22

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1965 and resident at Meram , Konya , Turkey. He was represented before the Commission by Ms Gerda E.M. Later, a lawyer practising in The Hague.

3. The application is directed against the Netherlands. The respondent Government were represented by their Agent, Mr Herman A.M. von Hebel , of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the refusal to prolong the applicant's residence permit in the Netherlands and his subsequent expulsion from that country where his minor son resides. The applicant invokes Article 8 of the Convention.

B. The proceedings

5. The application was introduced on 6 November 1995 and registered on 9 November 1995.

6. On 27 June 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 8.  It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 28 August 1996. The applicant replied on 15 November 1996 after an extension of the time-limit fixed for this purpose.

8. On 22 October 1997 the Commission declared the applicant's complaints under Article 8 of the Convention admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 31 October 1997 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 19 December 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

12. The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decisions on the admissibility of the application are annexed hereto as Appendices I and II.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. 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 in order 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.

17. On 27 August 1990, a son, Kürsad , was born to the applicant and his wife.

18. The applicant and his wife separated in November 1991 and divorce proceedings were initiated. Consequently, the applicant lost the right to reside in the Netherlands indefinitely since this had been dependent on his marriage. On 24 January 1992, the applicant applied for and was granted an independent residence permit in order to work in the Netherlands. This permit was valid for one year.

19. The applicant requested the Regional Court ( Arrondissementsrechtbank ) of Utrecht to establish an arrangement concerning parental access ( omgangsregeling , hereinafter "access arrangement"). The Regional Court requested the Child Care and Protection Board ( Raad voor de Kinderbescherming ) to investigate the feasibility of such an arrangement.

20. In its report of 18 January 1993, the Child Care and Protection Board stated that after an initial refusal to co-operate in an 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 an access arrangement would not be appropriate.

21. 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 para. 2 of Article 8.

22. 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 an access arrangement shortly.

23. The applicant's marriage was officially dissolved on 17 March 1994.

24. 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 visited Kürsad between one and three times a week.

25. 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 Dutch labour market other people, having priority over the applicant, were available for this kind of work.

26. The Advisory Commission further took into account that the applicant had only lived with Kürsad for one and a half year, that he saw Kürsad irregularly and briefly, and that he contributed irregularly to the costs of Kürsad's upbringing and education.

27. Having regard to the opinion of the Advisory Commission, the State Secretary for Justice rejected the applicant's request for revision on 6 October 1994. The applicant was informed at the same time that an appeal ( beroep ) against this decision would not suspend his expulsion.

28. The applicant filed an appeal against the decision of 6 October 1994 with the Aliens' Chamber ( Vreemdelingenkamer ) of the Regional Court of The Hague sitting at 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 . On the same date he also requested the Chairman of the Aliens' Chamber to grant an interim measure ( voorlopige voorziening ) allowing him to await the outcome of the appeal proceedings in the Netherlands.

29. 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.

30. The applicant filed an appeal with the Court of Appeal ( Gerechtshof ) of Amsterdam against the decision of the Utrecht Regional Court not to establish an access arrangement. A hearing took place on 19 April 1995, during which the applicant's former wife stated that she was not willing to co-operate in an 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. The applicant submitted that he had twice contacted his former wife but that she had not allowed him to see Kürsad .

31. On 10 May 1995, a hearing took place before the Regional Court of The Hague sitting at 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 an 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 Dutch labour market for the kind of work the applicant was employed to do.

32. When this decision was sent to the applicant, i.e. 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.

33. By separate decision of 24 May 1995, the President of the Regional Court rejected the request for an interim measure in view of the fact that the appeal proceedings had been concluded.

34. As regards the applicant's request for the establishment of an access arrangement, the Court of Appeal decided on 1 June 1995 to adjourn these proceedings. The Court found that at the present time there was insufficient reason to deny the applicant the 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.

35. 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 there was no other organisation capable of organising the trial meetings as he wished to see Kürsad and a further delay would have negative effects on both the applicant and the child.

36. On 31 October 1995, the applicant was placed in detention with a view to his expulsion ( vreemdelingenbewaring ).

37. 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 .

38. 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.

39. 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.

40. 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. Based on 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.

41. 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 the President of the Regional Court of The Hague sitting at Amsterdam to grant an interim measure to the effect that he would not be expelled as long as no decision had been taken on his objection against the refusal to grant him a residence permit.

42. On 8 November 1995, the applicant was expelled to Turkey.

43. On 20 February 1996, the applicant changed his request for an interim measure by now demanding that the President of the Regional Court order the Dutch authorities to let the applicant return to the Netherlands and that they be prohibited from expelling the applicant again as long as no decision had been taken on his objection and the proceedings before the Court of Appeal of Amsterdam concerning the access arrangement had not been terminated.

44. The President of the Regional Court rejected the objection which the applicant had filed against the refusal of a residence permit and, in light of this decision, also rejected the request for an interim measure on 7 March 1996.

45. In the proceedings concerning the access arrangement, a hearing before the Court of Appeal of Amsterdam was set for 2 December 1996. On 18 October 1996 the applicant applied to the Netherlands Embassy in Ankara for an entry visa in order to be present at this hearing. The applicant's representative was informed by an officer of the Ministry of Foreign Affairs that the applicant would not be provided with an entry visa as there was a risk that he would settle in the Netherlands. The request for an entry visa was officially rejected on 3 February 1997. The applicant has filed an objection against this refusal which is currently still pending.

46. The proceedings before the Court of Appeal of Amsterdam have been adjourned.

B. Relevant domestic law and practice

47. In general, an application for a residence permit in the Netherlands is granted only if the individual's presence serves an essential national interest or if there are compelling reasons of a humanitarian nature ( klemmende redenen van humanitaire aard ). Prolongation of a residence permit may be refused on public interest grounds (Section 11 para. 5 of the Aliens Act [ Vreemdelingenwet ]).

48. At the relevant time, foreigners married to either a Dutch national, a recognised refugee or a holder of a permanent residence permit were granted a residence permit as there were considered to exist compelling reasons of a humanitarian nature. After one year of legal residence in the Netherlands they acquired ex jure an indefinite right to remain pursuant to Section 10 para. 2 of the Aliens Act ( Vreemdelingenwet ).

49. This right expired ex jure when the spouses no longer co- habited (Section 47 para. 1 sub (a) of the Order on Aliens [ Vreemdelingenbesluit ]). If, at that time, the foreigner had been married for more than three years and had legally resided with his spouse in the Netherlands for at least one year during the time directly preceding the dissolution or breakdown of the marriage, he would be eligible for an independent residence permit.

50. An independent residence permit in order to work in the Netherlands, which had been granted following the dissolution or breakdown of a marriage, could be prolonged if at the time of the request for such a permit the foreigner was certain of employment for at least another year. However, prolongation was not refused if, inter alia , there were compelling reasons of a humanitarian nature to accept the individual's presence in the Netherlands.

51. An "essential national interest" as mentioned above is considered to exist where a foreigner is employed in a sector where there is not a sufficient number of capable people available on the labour market to fill all vacancies. To establish whether this is the case, regard is only had to the number of registered unemployed people enjoying priority ( prioriteit genietend aanbod ). For example, on the Dutch labour market E.U. citizens have priority over most other foreigners.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

52. The Commission has declared admissible the applicant's complaint that the refusal to allow him to continue to reside in the Netherlands and his subsequent expulsion from that country where his minor son is living constituted an unjustified interference with his right to respect for his private and family life.

B. Point at issue

53. Accordingly, the issue to be determined is whether there has been a violation of Article 8 of the Convention, as alleged by the applicant.

C. As regards Article 8 of the Convention

54. Article 8 of the Convention, insofar as relevant, provides as follows:

"1. Everyone has the right to respect for his private and family life ...

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."

55. The applicant claims that the decision to refuse him continued residence in the Netherlands constituted a breach of his right to respect for his private and family life.  He submits that he has tried everything possible to remain in contact with Kürsad , even though it is true that following his separation from Kürsad's mother he initially went through a difficult period of one year during which he had no contact with the child. However, from February 1993 onwards he visited Kürsad between one and three times a week. He also contributed financially to the care and upbringing of the child despite the fact that his own financial means were limited. After the Regional Court's decision of 24 January 1995 not to establish a formal access arrangement, his former wife refused to allow the applicant contact with Kürsad . For this reason he stopped his financial contributions, hoping in this way to exert pressure on the mother to grant him access.

56. Even though the applicant had been in receipt of social security benefits, he was gainfully employed at the time of the Regional Court's decision not to extend his residence permit. As he was thus contributing to Dutch society by paying taxes and social security contributions, the fact that there were other people available on the Dutch labour market to do the same work should not, in the applicant's opinion, have had the decisive importance which was attributed to it by the Dutch authorities. In addition, if the mother of his son was in receipt of welfare benefits the relevant authorities could have sought to recover an amount of maintenance from him.

57. Although Kürsad's mother is also Turkish, the applicant submits that the chances of his having contact with his son in Turkey are virtually non-existent. Moreover, following his expulsion to Turkey he has been refused an entry visa for the Netherlands and has thus not been able to attend a hearing in the proceedings before the Amsterdam Court of Appeal or to partake in any further trial meetings with Kürsad , despite the fact that his lawyer had been told by the officer of the Child Care and Protection Board that in her opinion another such meeting should take place.

58. The Government concede that the refusal to allow the applicant continued residence in the Netherlands constituted an interference with his right to respect for his private and family life. However, they submit that this interference was in accordance with the law and had a justified objective, namely the economic well-being of the country. As to whether the interference was proportionate to the aim pursued the Government argue that, on balance, the importance of continued residence in the Netherlands to the applicant was not greater than the State's interest in his expulsion.

59. In this respect the Government have taken into account, inter alia , that the applicant had lived with his son for less than eighteen months and that the contacts between them since then have been minimal. The applicant had ample opportunity, prior to the final decision concerning his residence, to clarify his relationship with Kürsad . It was perfectly possible, moreover, for the applicant to maintain contact with his son from Turkey. Even if a formal access arrangement had been established by the courts based on the frequency of one to three visits a week this would not have sufficed to show that there was a relationship of substance between the applicant and Kürsad and this would thus not have led to a different decision on the applicant's request for prolongation of his residence permit.

60. The Government further submit that the limited and irregular financial contributions made by the applicant until February 1995 also do not provide evidence of a close involvement on the part of the applicant with the care and upbringing of his son. In addition, the applicant was in receipt of benefits paid out of public funds from 1 February 1990 to 15 April 1995. The work which he carried out on an irregular basis from 27 June 1994 and the job which he held from 15 April 1995 were of a type for which there were sufficient applicants deserving higher priority on the Dutch labour market. Had the applicant succeeded in finding employment during the year he had been given for this purpose, i.e. from the end of January 1992, it would not have been held against him if he was occupying a job which could easily have been filled on the Dutch labour market.

61. The Commission notes that it is not in dispute between the parties that there was family life within the meaning of Article 8 para. 1 between the applicant and Kürsad and that the refusal of the Dutch authorities to prolong the applicant's residence permit in the Netherlands interfered with the exercise of his right to respect for family life. The Commission sees no reason to take a different view, bearing in mind that according to the Convention organs' case-law there exists between the child and its parents a bond amounting to "family life", from the moment of a child's birth and by the very fact of it, even if the parents are not living together (see Eur. Court HR, Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, para. 21), and that the family life of parents with their children does not cease to exist following the divorce of a married couple (cf. No. 12411/86, Dec. 4.3.87, D.R. 51, p. 245).

62. The Commission has to examine next whether or not this interference was justified under paragraph 2 of Article 8.

63. The Commission notes that the decision not to prolong the applicant's residence permit was taken in accordance with Section 11 para. 5 of the Aliens Act. It was, therefore, taken in accordance with Dutch law.

64. The Commission accepts, moreover, that the decision was taken in line with the policy followed by the Dutch authorities to regulate the labour market in view of the population density. The legitimate aim pursued was, thus, the preservation of the country's economic well-being (cf. Berrehab judgment, op. cit., p. 15, para. 26).

65. The question which remains to be answered is whether or not the decision was "necessary in a democratic society".

66. The Commission considers that Article 8 does not impose a general obligation on States to allow aliens to remain on their territory for the purpose of enjoying access to children of a broken marriage. Whether a refusal to allow an alien to re-enter or remain in a particular country for this purpose is necessary will depend on the facts of the individual case. A fair balance must be struck between the competing interests of the individual and of the community as a whole, and in the assessment of this balance the Contracting State enjoys a certain margin of appreciation (cf. Keegan v. Ireland judgment of 26 May 1994, Series A no. 290, p. 19, para. 49).

67. The Commission notes that the present application is similar to the case of Berrehab v. the Netherlands (op. cit.). Mr Berrehab was a Moroccan who had lived and worked without reproach since 1977 in the Netherlands where he had married a Dutch citizen who bore him a daughter, Rebecca. The marriage broke down and he was expelled from the Netherlands in 1983 when his daughter was nearly four years old. Until then he had maintained good relations with his ex-wife, saw his daughter four times a week, for several hours at a time, and contributed to her maintenance and education. Both the Commission and the Court found that the refusal to grant Mr Berrehab an independent residence permit and his ensuing expulsion were not proportionate to the legitimate aim pursued.

68. When comparing the facts of the present case with those of Mr Berrehab the Commission notes in the first place that it has not been submitted that the applicant was ever convicted of a criminal offence in the Netherlands; thus it does not appear that his conduct was any less irreproachable than that of Mr Berrehab . As regards their respective employment situations, the Commission observes that unlike Mr Berrehab , the applicant had been in receipt of benefits paid out of public funds for more than five years. However, the applicant, like Mr Berrehab , was employed at the time of his expulsion. It further appears that Mr Berrehab's financial contributions to the maintenance of his daughter were of a more regular nature than the applicant's contributions to Kürsad .

69. The Commission considers that so far, the present case does not compare favourably with the case of Berrehab . It recalls, however, that the nature of the ties between Mr Berrehab and Rebecca played a significant role in the Court's finding of a violation of Article 8 in that case: the Court noted that there had been close ties between Mr Berrehab and Rebecca for several years and that Rebecca needed to remain in contact with her father, seeing especially that she was very young (op. cit., p. 16, para. 29). Also, the Commission has previously held that where the right at issue is the family life of a parent and a child, particular regard must be had to the interests of the latter (cf. Hendriks v. the Netherlands, Comm. Report 8.3.82, para. 120, D.R. 29, p. 18; Berrehab v. the Netherlands, Comm. Report 7.10.86, para. 82, op. cit., p. 24).

70. The Commission observes that unlike Mr Berrehab , who had in fact never lived with his daughter Rebecca and Rebecca's mother as a family, the applicant had lived together with his wife and Kürsad for some fifteen months following the latter's birth. Although the applicant admits that after the separation from his wife he did not see Kürsad for a year, there then followed a period during which he saw his son between one and three times a week. Even if the applicant's visits to Kürsad did not last for a long time, the Commission considers that it cannot be concluded that the applicant did not value the contact with his son or that their relationship was a shallow one. Moreover, in its decision of 24 January 1995, the Regional Court of Amsterdam expressly stated that although it found it inappropriate to lay down the existing contacts between the applicant and Kürsad in a formal access arrangement it assumed that those contacts would continue and it held that the mother should ensure that they continue to take place as part of Kürsad's upbringing.             

71. It appears, however, that following the Regional Court's decision the mother refused to allow the applicant access to Kürsad , arguing that the contacts between them, such as they were, were not beneficial to Kürsad's welfare. In this respect the Commission notes that in the Berrehab case, on the contrary, Rebecca's mother had no objections to Mr Berrehab having access to his daughter and this will undoubtedly have facilitated the development of close ties between father and child. The Commission considers that it is unable to assess the well- foundedness of the claim made by Kürsad's mother as to the desirability of contact between the applicant and his son but it notes that it was precisely in order to clarify the applicant's interest in Kürsad that the Court of Appeal of Amsterdam ordered on 1 June 1995 that supervised trial meetings between them should be organised by the Child Care and Protection Board. The first and only such meeting did not take place until 3 November 1995, i.e. at a time when the applicant was being detained with a view to his expulsion. It is not in dispute that this delay was in no way attributable to the applicant, who in fact had attempted to expedite matters.

72. The Commission agrees with the Government that it would be contrary to the legitimate aim pursued by them if their authorities could not at a certain moment legitimately decide that a person in the position of the applicant had been given sufficient opportunity to find employment and accordingly draw the appropriate conclusions regarding his rights of residence if he had been unsuccessful. However, as the Commission has pointed out above, in the fair balance that should be struck account should also be taken of the applicant's interests and, in a case like the present one, those of the child. The Commission notes in this respect that none of the authorities which issued decisions concerning the applicant's request for an extension of his residence permit appear to have had regard to the particular interests of the child. Moreover, when forming an opinion as to the closeness of the ties between the applicant and his son, the Secretary of State for Justice, in her decision of 6 November 1995 on the applicant's renewed request for a residence permit, preferred to base herself on observations made by two police officers who had attended the trial meeting on 3 November 1995 rather than those of the officer of the Child Care and Protection Board, despite the fact that the latter officer must be considered as better qualified to evaluate such meetings.

73. The Commission is in particular struck by the fact that the Dutch authorities chose to expel the applicant at a time when the official investigation into the closeness of the ties between father and son had not been concluded (see Eur. Court HR, O. v. the United Kingdom judgment of 8 July 1987, Series A no. 120, pp. 27-28, paras. 61-64). In addition, it fails to see how this investigation might yet be brought to a conclusion given that the Dutch authorities have refused to grant the applicant an entry visa in order for him to attend a hearing in these proceedings. In these circumstances, and noting the apparently troubled relationship between the applicant and Kürsad's mother, it is similarly unclear to the Commission how the Government envisage that contacts take place between the applicant and his son from Turkey.

74. Finally, the Commission notes that at the time of the applicant's expulsion Kürsad was five years old. Although older than Rebecca at the time of Mr Berrehab's expulsion, the Commission finds that also Kürsad was still very young.

75. In these circumstances, the Commission cannot be satisfied that the Dutch authorities fulfilled their obligation 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. Accordingly, the Commission finds that the interference with the applicant's rights under Article 8 para. 1 of the Convention was not necessary in a democratic society.

CONCLUSION

76. The Commission concludes, unanimously, that in the present case there has been a violation of Article 8 of the Convention.

    M.-T. SCHOEPFER                                                               J.-C. GEUS

      Secretary                                                                                 President

to the Second Chamber                                                    of the Second Chamber