Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14095/88

by Hassan AKBULUT

against the Netherlands

The European Commission of Human Rights sitting in private

on 12 October 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

MM. C.L. ROZAKIS

L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 8 June 1988 by

H. A. against the Netherlands and registered on 2 August 1988

under file No. 14095/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1951 and, at the

time of introduction of this application, he was in prison in The

Hague, the Netherlands. He is represented by Mrs. G.S. Koopman-Rond,

a lawyer practising in The Hague.

The applicant arrived with his wife and children in the

Netherlands from Turkey on 25 October 1974. On 26 August 1980 he was

granted permanent resident status. His wife and five children are

also Turkish nationals, and have independently been granted permanent

residence status. The children were born between 1971 and 1980.

On 12 November 1982, the applicant was convicted in second

instance by the Court of Appeal (Gerechtshof) of The Hague of

complicity to murder. He was sentenced to 10 years' imprisonment.

The Supreme Court (Hoge Raad) rejected his appeal in cassation on

19 April 1983. Two subsequent requests for a retrial were rejected.

The applicant has always maintained his innocence. The circumstances

of the crime led the courts to conclude that it was the result of a

Turkish family feud.

On 23 July 1985, the Deputy Minister of Justice revoked the

applicant's permanent residence permit and declared him an undesirable

alien (ongewenst vreemdeling). His request for a review of this

decision was without success, as was his appeal to the Council of

State (Raad van State).

In its decision of 10 December 1987, it stated, inter alia,

that the applicant could not be considered to be integrated into Dutch

society because he had only been in the country for seven years when

he committed the crime, which, moreover, was a culturally determined

crime. Furthermore, it stated that the applicant's claim to innocence

and his requests for retrial, did not change the fact that he had been

lawfully convicted and sentenced to 10 years' imprisonment.

The applicant was released on parole on 6 September 1988 and

subsequently deported to France where he was granted a temporary

residence permit.

COMPLAINTS

1. The applicant complains of various shortcomings in his

detention and trial. He alleges that, therefore, his expulsion is

based on a defective conviction. He invokes Article 5 para. 2 and the

whole of Article 6 of the Convention.

2. Furthermore, the applicant complains that his permanent

residence permit was withdrawn and that he was declared an undesirable

alien on 23 July 1985, which is 31/2 years after the day of the murder.

The final decision on his appeal against the withdrawal and the

declaration was taken on 10 December 1987. He submits that this

exceeds "a reasonable time" within the meaning of Article 6 para. 1 of

the Convention.

3. The applicant complains of an unjustified interference with

his family life. He submits that he will be separated from his wife

and children because of his expulsion. He invokes Article 8 of the

Convention. He furthermore complains of discrimination because the

expulsion is an extra punishment which cannot be imposed on a Dutch

person. He invokes Article 14 of the Convention.

THE LAW

1. The applicant has complained of the lawfulness of his

detention and the fairness of his trial. He has invoked Articles 5

(Art. 5) and 6 (Art. 6) of the Convention.

However, the Commission notes that the final decision in the

criminal proceedings against the applicant was taken on 19 April 1983,

which is more than six months before this application was introduced.

It follows that this part of the application must be rejected under

Articles 26 (Art. 26) and 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant has also complained of the duration of the

proceedings concerning the withdrawal of his permanent residence

permit. He has invoked Article 6 para. 1 (Art. 6-1) of the Convention.

However, the Commission recalls that Article 6 (Art. 6) is not

applicable to proceedings concerning the withdrawal of a permanent

residence permit and a declaration of being an undesirable alien (cf.

No. 9285/81, Dec. 6.7.82, D.R. 29 p. 205). This part of the

application is therefore incompatible ratione materiae with the

provisions of the Convention within the meaning of Article 27 para. 2

(Art. 27-2).

3. Finally, the applicant has complained that his deportation and

undesirable alien status amount to an interference with his right to

respect for his family life. Furthermore, he claims that his

expulsion is an unfair differentiation in comparison with Dutch

nationals. He has invoked Articles 8 (Art. 8) and 14 (Art. 14) of

the Convention.

The Commission recalls that expulsion from a country in which

close members of the family of the person concerned are living may be

contrary to Article 8 (Art. 8) of the Convention (cf. No. 6357/73,

Dec. 8.10.74, D.R. 1 p. 77 ; No. 9285/81, Dec. 6.7.82, D.R. 29 pp. 205,

209).

In the present case the Commission is of the opinion that the

applicant's expulsion from the Netherlands constituted an interference

with the applicant's right to respect for his family life within the

meaning of Article 8 para. 1 (Art. 8-1) of the Convention.

The Commission recalls, however, that under Article 8 para. 2

(Art. 8-2) of the Convention there may be an interference by a public

authority with the exercise of the right to respect for family life,

if such interference is in accordance with the law and is necessary

in a democratic society for the prevention of disorder and crime, for

the protection of health and morals, or for the protection of the

rights and freedoms of others.

The Commission notes from the file that the withdrawal of the

applicant's residence permit and the declaration of undesirable alien

were made in accordance with the relevant provisions of the Aliens Act

(Vreemdelingenwet). Given the nature and the seriousness of the crime

for which the applicant was convicted, the Commission is satisfied

that the interference complained of was justified as a measure

necessary in a democratic society for the prevention of disorder and

crime. Furthermore, the Commission finds the alleged difference in

treatment objectively and reasonably justified.

It follows that this part of the application is manifestly

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

Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

Menu

H. A. v. NETHERLANDS

H. A. v. NETHERLANDS

LEXI