Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13158/87

by Vehbija HOPIC and

Dilber HOPIC-DESTANOVA

against the Netherlands

The European Commission of Human Rights sitting in private

on 4 July 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 13 August 1987

by Vehbija HOPIC and Dilber HOPIC-DESTANOVA against the Netherlands

and registered on 24 August 1987 under file No. 13158/87;

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 facts of the case, as submitted by the parties, may be

summarised as follows.

The applicants, wife and husband, have Yugoslav nationality.

They were born in 1960 and 1964 respectively and they live in Gilze en

Rijen, the Netherlands. The husband is an industrial worker. Before

the Commission they are represented by Mr. H. Poeth, a lawyer

practising in Tilburg, the Netherlands.

On 12 February 1981 the applicants married in the Netherlands

according to gypsy rites, but they did not register the marriage

according to Dutch law. The husband had a special unrestricted

residence permit (verblijfsvergunning) in the Netherlands, pursuant to

the Dutch policy aimed at integration of gypsies in Dutch society. On

12 May 1981 the wife requested a residence permit in order to remain

with her husband. On 7 July 1981 this was refused by the local head

of police, mainly on the ground that there was no joint household and

that she did not have sufficient means to support herself. On 6

August 1981 she requested the Deputy Minister of Justice to review

this decision. As this request had no suspensive effect, she left the

Netherlands on 7 August 1981. When the Deputy Minister of Justice did

not take a decision within the prescribed three months, the wife

appealed against the implicit refusal on 20 November 1981 to the

Judicial Division of the Council of State (Afdeling Rechtspraak van de

Raad van State).

On 27 November 1981 the applicants married in the Yugoslav

Embassy in The Hague, a marriage recognised under Dutch law. Their

first child was born in 1982 in Tilburg.

On 7 October 1982 the wife was deported to Yugoslavia.

By the end of 1986 she re-entered the Netherlands, after having

spent nearly four years in Belgium, where she gave birth to two more

children, in 1985 and 1986 respectively. During this period the

applicants had regular contact, as the husband visited his wife in

Belgium almost every week and stayed with her each time for a few

days.

On 13 February 1987 the Judicial Division of the Council of

State upheld the refusal of the Deputy Minister of Justice to grant

the wife a residence permit. It agreed with the submissions of the

Deputy Minister of Justice that the residence permit was lawfully

refused on the grounds that the applicants at the time that the

application was brought before the Council of State were not

lawfully married and that the husband did not have sufficient

financial means to support his wife.

On 13 November 1987, the husband was granted a permanent

residence permit by the Dutch authorities.

In the meantime, on 13 February 1985, the applicants had filed

a complaint with the Ombudsman about the excessive length of the

proceedings before the Judicial Division of the Council of State. The

Ombudsman found that the delay was caused by the Deputy Minister of

Justice who only filed the submissions with the Council of State on

8 January 1986. He disapproved of the way the Deputy Minister had

dealt with the applicant's case.

On 1 May 1988 the wife obtained a residence permit.

COMPLAINTS

1. The applicants consider that they have been subjected to

inhuman treatment, as envisaged by Article 3 of the Convention, in

that the authorities failed to expedite the judicial proceedings,

pending which they were forcibly separated, and by imposing conditions

for their reunification which they could not fulfil. They also

consider that Article 6 has been breached in that the decision has not

been taken within a reasonable time.

2. The applicants further complain that Articles 8 and 12 of the

Convention have been violated because they were prevented from having

a family life and from founding a family as a result of the refusal of

the authorities to grant the wife a residence permit and her expulsion

from the Netherlands.

3. They further allege that, as regards the possibilities for

family reunification, they have been discriminated against in

comparison with other groups of persons holding a special but similar

position in Dutch aliens law. They invoke Article 14 of the

Convention in conjunction with Article 8.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 13 August 1987 and

registered on 24 August 1987.

On 5 February 1990 the Commission decided to communicate the

application to the respondent Government and to ask for observations

on the admissibility and merits of the application with regard to the

issues under Articles 25, 8, 12 and 14 of the Convention.

The Government's observations were received by letter dated

19 April 1990 and the applicants' observations by letter dated 14 June

1990.THE LAW

1. The applicants consider that the impossibility for them to

live together during the time that their request for a residence

permit was pending constitutes inhuman treatment within the meaning of

Article 3 (Art. 3) of the Convention.

Article 3 (Art. 3) reads as follows :

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission recalls that ill-treatment must attain a

minimum level of severity if it is to fall within the scope of Article

3 (Art. 3) (No. 10142/82, Dec. 8.7.85, D.R. 42 p. 86 and Eur. Court H.R.,

Ireland v. United Kingdom judgment of 18 January 1978, Series A no.

25, p. 65, para. 162).

The Commission considers that the situation of which the

applicants complain is not such as to raise an issue under Article 3

(Art. 3) of the Convention.

This part of the application must therefore be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicants further complain under Article 6 para. 1

(Art. 6-1) of the Convention of the length of the proceedings in

respect of the first applicant's request for political asylum.

However, the Commission recalls its constant case-law according to

which Article 6 para. 1 (Art. 6-1) does not apply to proceedings

concerning asylum or residence permits for aliens (No. 9285/81, Dec.

6.7.82, D.R. 29 p. 205).

It follows that this part of the application must be rejected

as being incompatible ratione materiae with the provisions of the

Convention, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicants further argue that the refusal to grant the

wife a residence permit on the ground that the applicants were not

lawfully married at the time amounts to a breach of Article 8 (Art.

8). The refusal also constituted a de facto hindrance to the

enjoyment of the rights set forth in Article 12 (Art. 12).

Article 8 (Art. 8) reads insofar as relevant :

"1. Everyone has the right to respect for his ...

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."

Article 12 (Art. 12) reads as follows :

"Men and women of marriageable age have the right to

marry and to found a family, according to the national

law governing the exercise of this right."

The Government submit in the first place that the applicants

can no longer be considered as victims within the meaning of Article

25 (Art. 25) of the Convention, since both applicants have been granted

residence permits.

They further contend that there has never been a family life

as such between the applicants. Finally, even assuming that a family

life had existed, the interference was justified under paragraph 2 of

Article 8 (Art. 8) as being necessary in a democratic society in the

interests of the economic well-being of the country.

The Commission does not find it necessary to decide whether

the applicants can still be regarded as victims of an alleged

violation of Articles 8 and 12 (Art. 8, 12) for the period between

October 1982 and May 1988, since in any event this complaint is

manifestly ill-founded for the following reason.

The Commission notes that the decision by the Dutch

administrative authorities not to grant the wife a residence permit

was based on the fact that there was no joint household, the marriage

concluded according to gypsy rites not being legally recognised under

Dutch law. The Judicial Division of the Council of State, called upon

to decide whether the above decision could be regarded as lawful was

bound by the facts, which constituted the basis of the challenged

decision, and could not take into account factual or legal elements

which had occured subsequent to the challenged decision, such as the

marriage concluded on 27 November 1981, and which was regarded valid

under Dutch law. Nothing prevented the wife however to present a new

request for a residence permit as soon as she got married to Mr.

Hopic, who had an unrestricted right of residence and to invoke these

changed circumstances in order to be granted a residence permit for

the purpose of family reunification. However, she did so only several

years later. The Commission therefore considers that the fact that

the applicants were unable to have a family life in the Netherlands

between 1982 and 1988 is to be attributed to the wife's tarrying in

taking the necessary administrative steps.

It follows therefore that this part of the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicants further consider that the conditions imposed on

them as gypsies for family reunification constitute discrimination,

since they do not apply to other aliens. They invoke Article 14 of

the Convention in conjunction with Article 8 (Art. 14+8).

The Government contend that in the area of family

reunification the gypsy population is treated in the same way as other

aliens.

The Commission recalls that Article 14 (Art. 14) safeguards

individuals, placed in analogous situations, from discrimination (Eur.

Court H.R., Van Der Mussele Judgment of 23 November 1983, Series A no.

70, para. 46). However, for the reasons indicated above, the

Commission finds nothing in the case file to substantiate the

applicants' allegation.

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 by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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HOPIC ; HOPIC-DESTANOVA v. THE NETHERLANDS

HOPIC ; HOPIC-DESTANOVA v. THE NETHERLANDS

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