Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13113/87

by Mehmet POLAT

against the Netherlands

The European Commission of Human Rights sitting in private

on 6 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 3 July 1987 by

Mehmet POLAT against the Netherlands and registered on 27 July 1987

under file No. 13113/87;

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 1942 and at

present residing in Gaziantep, Turkey. He is represented, in the

proceedings before the Commission, by Mr. J.F. Sabaroedin, a lawyer

practising in Oldenzaal, the Netherlands.

The facts, as submitted by the applicant, may be summarised as

follows:

On 6 February 1969 the applicant came to the Netherlands with

his wife and two children. In the Netherlands two other children were

born, in 1971 and 1973 respectively.

On 21 June 1974 the applicant was granted a permanent

residence permit.

On 7 October 1979 the applicant travelled from the Netherlands

to the Federal Republic of Germany. There he was arrested on

suspicion of heroin trading. On 10 July 1980 he was convicted by the

Hamburg Regional Court (Landgericht) and sentenced to 51/2 years'

imprisonment for heroin trading under aggravating circumstances and

tax fraud. In December 1982 he was released from prison for good

behaviour.

On 2 December 1982 the Deputy Minister (Staatssecretaris) of

Justice decided to withdraw the applicant's permanent residence

permit, in accordance with Section 14 para. 1(c) of the Aliens Act

(Vreemdelingenwet). The Deputy Minister considered this decision

justified, in view of the seriousness of the crime committed.

His permanent residence permit having been withdrawn, the

applicant was deported, upon his release in December 1982, from

Germany to Turkey. However, he received permission to return

temporarily to the Netherlands in connection with the proceedings

regarding the withdrawal of his permanent residence permit.

By letter of 21 December 1982 the applicant requested the

Deputy Minister for a revision of her decision.

By decision of 30 September 1983 the Deputy Minister rejected

the request.

On 6 October 1983 the applicant appealed to the Judicial

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

State). Since this appeal had no suspensive effect, he instituted

summary proceedings (kort geding) with the President of the Regional

Court (Arrondissementsrechtbank) of Almelo, requesting a prohibition

to deport him from the Netherlands until the Council of State had

decided on his appeal. On 19 October 1983 the President rejected the

request.

By decision of 17 January 1984 the Deputy Minister of Justice

declared the applicant an undesirable alien (ongewenste vreemdeling).

On 28 February 1984 the applicant requested the Deputy Minister for a

revision of this decision. On 22 January 1985 the Deputy Minister

rejected the request. By letter of 13 February 1985 the applicant

appealed to the Judicial Division of the Council of State.

By decision of 9 January 1987 the Judicial Division of the

Council of State rejected the applicant's appeal against the decision

to withdraw his permanent residence permit. It considered, inter

alia, that the applicant had seriously infringed public order.

It held that the crime for which the applicant had been convicted in

the Federal Republic of Germany, was also considered to be serious in

the Netherlands, and that part of the facts that had been established

by the German judge had taken place in the Netherlands.

The Council found that, in view of the seriousness of the

infringement on the public order, the personal interests of the

applicant did not require the State to refrain from withdrawing the

permanent residence permit.

By decision of the same date the Judicial Division of the

Council of State rejected the applicant's appeal against the decision

to declare him an undesirable alien.

The applicant's wife and children still live in the

Netherlands.

COMPLAINTS

The applicant complains that because of the withdrawal of his

permanent residence permit his family life is endangered. He points

out that he has been living with his family in the Netherlands since

1969, that they are completely acclimatized in that country, and that

in particular his children, two of whom were born in the Netherlands,

are very attached to the Dutch society. He invokes Article 8 para. 1

of the Convention.

The applicant submits that, in the present case, the

interference with his right under Article 8 para. 1 of the Convention

is not "necessary in a democratic society" within the meaning of

Article 8 para. 2 of the Convention.

THE LAW

The applicant complains that because of the withdrawal of his

permanent residence permit his family life is endangered. He invokes

Article 8 (Art. 8) of the Convention.

The Commission recalls that according to its established

case-law the Convention does not guarantee, as such, any right for an

alien to enter or reside in a specific country (cf. for example, No.

4403/70, Dec. 10.10.70, Collection 36 p. 92; No. 5269/74, Dec. 8.2.72,

Collection 39 p. 104) or not to be expelled from a particular country

(cf. for example, No. 4314/69, Dec. 2.2.70, Collection 32 p. 96).

However, the Commission has also stated 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. for

example, No. 6357/73, Dec. 8.10.74, D.R. 1 p. 77; No. 7816/77, Dec.

19.5.77, D.R. 9 p. 219).

In the present case the Commission notes that the withdrawal

of the applicant's permanent residence permit has resulted in his

separation from his wife and children and that it would involve

considerable hardship, in particular for the children, if they were to

follow the applicant to Turkey. Consequently, the withdrawal of the

permanent residence permit constituted an interference with his 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 withdrawal of the applicant's permanent residence permit

was decided in accordance with Section 14 para. 1(c) of the Aliens

Act. Given the nature and the seriousness of the drugs offences for

which the applicant was convicted in Germany and which had been

partially committed in the Netherlands, the Commission is satisfied

that the interference complained of was justified as a measure

necessary in a democratic society for the prevention of disorder or

crime (No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219; No. 9203/80, Dec.

5.5.81, D.R. 24 p. 239).

It follows that the application is manifestly ill-founded

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

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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POLAT v. NETHERLANDS

POLAT v. NETHERLANDS

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