Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33257/96

by Andries H. KLIP and Swantje A. KRÜGER

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 August 1996 by

Andries H. KLIP and Swantje A. KRÃœGER against the Netherlands and

registered on 6 September 1996 under file No. 33257/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Dutch national, born in 1965. The second

applicant is a German national, born in 1964. The applicants are a

married couple and reside in Zeist, the Netherlands.

The facts of the case, as submitted by the applicants, may be

summarised as follows.

a. Particular circumstances of the present case

The applicants have a relationship with each other since 1987

and, in November 1995, have jointly bought the house in which they

live.

On 2 January 1996, the second applicant applied for a residence

permit on grounds of stay with the first applicant, which was

subsequently issued with a validity of one year. On 17 January 1996,

the applicants gave notice to the Registrar of births, deaths and

marriages (Ambtenaar van de burgerlijke stand, hereinafter referred to

as "Registrar") of the municipality of Zeist of their intention to get

married.

Upon indication by the Registrar, the first applicant informed

the Aliens Department (Vreemdelingendienst) of the intended marriage.

Upon request of the Aliens Department, the first applicant provided the

Aliens Department with the necessary information for a written

statement referred to in Article 44 para. 1(k), Book I of the Civil

Code (Burgerlijk Wetboek), i.e. the data requested in part A of the

standard questionnaire D79-1 (see under b. Relevant domestic law). At

that point in time the first applicant did not realise that this

information was requested for the purposes of Article 44 para. 1 (k),

Book I of the Civil Code, but thought the information was needed in

view of the imminent change in the second applicant's civil status.

On 6 February 1996, the Registrar of Zeist accepted to register

the applicants' notification of their intended marriage on

10 April 1996, but informed them that they should seek a new statement

referred to in Article 44 para. 1(k), Book I of the Civil Code, as the

validity of the initial statement would have expired on the date of

their marriage.

By letter of 26 February 1996, the applicants informed the

Registrar of their objections against seeking permission of the Aliens

Department for their marriage. They submitted that such an obligation

was contrary to their rights under Articles 8, 12 and 14 of the

Convention. They further submitted that the condition was superfluous,

since it would not create a stronger right of residence for the second

applicant than the one she already had.

By letters of 5 and 25 March 1996, the Registrar informed the

applicants that, pursuant to the Act on prevention and suppression of

marriages of convenience (Wet voorkoming en bestrijding

schijnhuwelijken) of 2 June 1994, a statement referred to in Article 44

para. 1(k), Book I of the Civil Code is one of the documents which must

be submitted, where one or both future spouses do not hold Dutch

citizenship. At the date of marriage this statement must not be older

than two months.

The applicants were further informed that, as they did not intend

to seek a new statement although, pursuant to Article 58 para. 1, Book

I of the Civil Code, the validity of their initial statement would

expire on 18 March 1996, the Registrar would not be able to issue a

marriage certificate. Consequently, the applicants' marriage planned

for 10 April 1996 could not take place if they would not submit a new

statement before 10 April 1996.

On 1 April 1996, the applicants filed a petition (verzoekschrift)

with the Regional Court (Arrondissementsrechtbank) of Utrecht in which

they objected to the Registrar's refusal to issue a marriage

certificate in the absence of a new statement referred to in Article 44

para. 1(k), Book I of the Civil Code and requested a judicial order to

the Registrar to issue the marriage certificate.

On 11 June 1996, the Registrar informed the applicants' lawyer

that, following an informal request from the Regional Court, he had

contacted the Aliens Department with the question whether it would be

possible to issue a second statement without requiring the personal

appearance of the applicants. The Aliens Department had reacted

favourably and, on 14 May 1996, issued a new statement with validity

until 14 July 1996.

The applicants married on 26 June 1996. Although the proceedings

before the Regional Court had thus become devoid of purpose, the

applicants chose to continue these proceedings in order to obtain a

decision as to the costs of the proceedings.

b. Relevant domestic law

On 1 November 1994, the Act on prevention and suppression of

marriages of convenience entered into force. This Act sought to create

a systematic examination of all intended marriages involving aliens and

all such marriages which have been concluded abroad. As a result of

this Act, a new Article 44 was included in Book I of the Civil Code.

This new provision enumerates the documents which must be submitted to

the Registrar when notifying an intended marriage.

Article 44 para. 1(k) requires, in case one of the future spouses

does not hold Dutch citizenship, the submission of a statement issued

by the Head of the local police in accordance with the Aliens Act

(Vreemdelingenwet) to the effect that the foreign partner is lawfully

residing in the Netherlands, has filed an application for a residence

permit or does not intend to take up residence in the Netherlands.

In order to obtain this statement, the future spouses must

complete part A of the standard questionnaire D79-1. The Dutch future

spouse is requested to state his or her name, place and date of birth,

current address and telephone number(s), and nationality. He or she is

further required to submit a proof of identity and, as the case may be,

proof of permanent residence abroad.

The information sought about the alien future spouse is the name,

date, country and place of birth, nationality, current address and

telephone number(s). Where children are involved, information on the

particulars and parentage of these children is also requested. Finally,

information is requested as regards the period of time the alien future

spouse has already resided in the Netherlands, whether he or she

already holds a residence permit, whether he or she has applied for a

residence permit or does not intend to take up residence in the

Netherlands.

By completing part B of the standard questionnaire D79-1, the

authorities of the Aliens Department are to verify the immigration

history and residence status of the alien future spouse, including

questions whether or not this person has been expelled in the past.

Only where the Alien Department has a reasonable suspicion that

the intended marriage is one of convenience, it further has to complete

an additional standard questionnaire D79-2. If the Aliens Department

does not have such a reasonable suspicion, this questionnaire does not

have to be completed.

The questionnaire D79-2 contains questions about the aliens'

immigration and residence history, whether the Registrar has ever

refused to issue a marriage certificate to the persons involved before,

whether a previous marriage of one of the persons involved has ever

been annulled on grounds of being a marriage of convenience, whether

a registration of a marriage concluded abroad has ever been refused

before, whether incorrect information has ever been provided by or on

behalf of the alien concerned, whether it has appeared that the future

spouses hardly know each other, whether or not the future spouses have

made contradictory statements, whether statements expressed by the

intended spouses indicate a marriage of convenience, whether the Dutch

partner has clearly indicated not to be willing to go to the country

of the alien spouse, whether or not the partners unusually frequently

change addresses, whether or not the Dutch future spouse has already

concluded more than one short-lasting marriage and whether the future

spouses are in an extreme hurry to conclude the intended marriage.

Pursuant to Article 53 para. 3, Book I of the Civil Code, the

public prosecutor is competent to oppose (stuiten) a marriage for being

contrary to Dutch public order where the primary purpose of one or both

of the future spouses is to obtain entry into the Netherlands.

According to Article 56, Book I of the Civil Code a marriage cannot be

concluded until an opposition has been lifted in accordance with the

procedure laid down in Article 55, Book I of the Civil Code.

Under Article 71(a), Book I of the Civil Code, upon a request of

the public prosecutor, a concluded marriage can be nullified as a

fictitious act contrary to Dutch public order where the primary purpose

of one or both of the future spouses was to obtain entry into the

Netherlands.

COMPLAINTS

1. The applicants complain under Article 8 of the Convention that

an investigation as to their motives to get married with each other

constitutes an unjustified interference with their right to respect for

their private life.

2. The applicants complain under Article 12 of the Convention that

the exercise of their right to marry was unjustly delayed on

discriminatory and humiliating grounds, i.e. an investigation into the

motives of their marriage, which went beyond the accepted limits under

the Commission's case-law. The applicants refer in this respect to the

cases of Hamer (No. 7114/75, Comm. Report 13.12.79, D.R. 24, p. 5) and

Draper (No. 8186/78, Comm. Report 10.7.80, D.R. 24, p. 72).

3. The applicants further complain under Article 12 of the

Convention that they were only given a limited period of time in which

they could get married, i.e. the period of validity of the statement

referred to in Article 44 para. 1(k), Book I of the Civil Code.

4. The applicants finally complain under Article 14 of the

Convention in conjunction with Article 12 of the Convention that the

obligation for non-nationals to obtain a statement referred to in

Article 44 para. 1(k), Book I of the Civil Code from the Aliens

Department when they wish to marry a Dutch national constitutes a

discriminatory treatment on grounds of nationality. They further

complain under Article 14 of the Convention that this requirement is

superfluous in the circumstances of their case, as the second

applicant's residence status would not be altered on basis of her

marriage.

THE LAW

1. The applicants complain under Article 8 (Art. 8) of the

Convention that an investigation as to their motives to get married

with each other constitutes an unjustified interference with their

right to respect for their private life.

Article 8 (Art. 8) of the Convention, insofar as relevant,

reads:

"1. Everyone has the right to respect for his private ... 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 ... the economic well-being of the country..."

The Commission notes in the first place that the information

requested by the Aliens Department from the applicants themselves, in

order to verify the immigration status of the second applicant in view

of her intended marriage to a Dutch national, consisted mainly of the

applicants' particulars.

Having noted the scope of the questions the applicants had to

reply in part A of the standard questionnaire D79-1, the Commission

considers that an obligation to provide information of this kind at the

request of public authorities does not constitute an interference with

the applicants' private life within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention (cf., mutatis mutandis, No. 16810/90, Dec.

9.9.92, D.R. 73, p. 136).

The Commission further does not find it established that, apart

from the verification of the second applicant's residence status, any

further investigation has been conducted by the Aliens Department as

to the motives of the marriage at issue. In this respect it notes that

the second applicant already held a Dutch residence permit.

It follows that this complaint must be rejected as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicants complain under Article 12 (Art. 12) of the

Convention that the exercise of their right to marry was unjustly

delayed on discriminatory and humiliating grounds, i.e. an

investigation into the motives of their marriage, and that they were

only given a limited period of time in which they could get married.

Article 12 (Art. 12) of the Convention provides as follows:

"Men and women of marriageable age have the right to marry and

to found a family, according to the national laws governing the

exercise of this right."

The Commission recalls that this provision of the Convention

guarantees the fundamental right to marry and found a family. The

exercise thereof "shall be subject to the national laws of the

Contracting States, but ... the limitations thereby introduced must

not... restrict or reduce the right in such a way or to such an extent

that the very essence of the right is impaired (cf. Eur. Court HR, F.

v. Switzerland judgment of 18 December 1987, Series A no. 128, p. 16,

para. 32). As noted by the Court in the F. v. Switzerland judgment, in

all the Council of Europe Member States, these limitations appear as

conditions and are embodied in procedural or substantive rules.

The Commission notes that in the present case, the issue concerns

substantive rules, the purpose of which is to prevent marriages of

convenience between Dutch nationals and aliens for immigration

purposes. In this respect the Commission recalls that the Dutch

immigration policy is clearly related to the economic well-being of the

country, in particular to the authorities' concern, given the

population density in the Netherlands, to regulate the labour market

(cf. No. 14501/89, Dec. 6.1.92, D.R. 72, p. 118).

Although in the specific circumstances of the present case the

relevance of the statement at issue may be questionable, the Commission

cannot find the limitation at issue, namely the applicants' obligation

to submit a statement referred to in Article 44 para. 1(k), Book I of

the Civil Code, to be contrary to Article 12 (Art. 12) of the

Convention (cf. No. 31401/96, Dec. 16.10.96, D.R. 87, p. 160).

Insofar as the applicants complain that they only had a limited

period of time within which they could get married in view of the date

of expiry of the validity of the statement referred to in Article 44

para. 1(k), Book I of the Civil Code, the Commission does not find it

established that the Aliens Department was unable or unwilling to issue

a new statement when it appeared that its validity would not cover the

marriage date chosen by the applicants.

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

3. The applicants finally complain under Article 14 of the

Convention in conjunction with Article 12 (Art. 14+12) of the

Convention that the obligation for non-nationals to obtain a statement

referred to in Article 44 para. 1(k), Book I of the Civil Code from the

Aliens Department when they wish to marry a Dutch national constitutes

a discriminatory treatment on grounds of nationality. They further

complain under Article 14 (Art. 14) of the Convention that this

requirement is superfluous in the circumstances of their case, as the

second applicant's residence status would not be altered on basis of

her marriage.

Article 14 (Art. 14) of the Convention reads:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

For the purposes of Article 14 (Art. 14) a difference of

treatment is discriminatory if it has no objective and reasonable

justification, that is if it does not pursue a legitimate aim or if

there is not a reasonable relationship of proportionality between the

means employed and the aim sought to be realised. Moreover the

Contracting States enjoy a margin of appreciation in assessing whether

and to what extent differences in otherwise similar situations justify

a different treatment (cf. Eur. Court HR, Van Raalte v. the Netherlands

judgment of 21 February 1997, Reports 1997-I, No. 29, para. 39).

The Commission notes that the obligation to submit a statement

referred to in Article 44 para. 1(k), Book I of the Civil Code is aimed

at preventing marriages of convenience between Dutch nationals and

aliens for immigration purposes.

The Commission considers that the resulting difference of

treatment between Dutch nationals who wish to marry another Dutch

national and Dutch nationals who wish to marry a non-Dutch national has

an objective and reasonable justification. It pursues the legitimate

aim of controlling immigration in a densely populated country. The

Commission cannot find, in view of this aim, that requesting future

spouses in such a situation to submit information as regards the

immigration status of the alien future spouse constitutes a

disproportionate measure.

The Commission does not find that the applicants' other complaint

under Article 14 (Art. 14) of the Convention raises any issues under

this provision.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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KLIP AND KRÜGER v. THE NETHERLANDS

KLIP AND KRÜGER v. THE NETHERLANDS

LEXI