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KARLI AND BALCI v. THE NETHERLANDS

Doc ref: 12881/87 • ECHR ID: 001-494

Document date: December 9, 1987

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KARLI AND BALCI v. THE NETHERLANDS

Doc ref: 12881/87 • ECHR ID: 001-494

Document date: December 9, 1987

Cited paragraphs only

Application No. 12881/87

by G. KARLI and E. BALCI

against the Netherlands

The European Commission of Human Rights sitting in private

on 9 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 12 March 1987

by G. Karli and E. Balci against the Netherlands and registered

on 29 April 1987 under file No. 12881/87;

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&S

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

summarised as follows.

The first applicant is a Turkish citizen, born in 1960. The

second applicant is her daughter, born in 1986. They are at present

living in the Netherlands and are represented in the proceedings

before the Commission by Ms. van Aller, a lawyer practising in

Amsterdam.

On 20 August 1981 the first applicant married a Turkish

national in Turkey. He has lived in the Netherlands since 1972, where

he has a residence permit, and is a so-called "second generation

immigrant".

The exact date of the first applicant's entry into the

Netherlands is unknown.

On 27 March 1984 the first applicant requested a residence

permit from the Head of Police (Hoofd van de Plaatselijke politie) of

The Hague.

The permit was refused on the same date on the grounds that

the husband did not have proper living accommodation or sufficient

means to support them, as required by Dutch law.

She appealed against this decision to the Deputy Minister of

Justice (Staatssecretaris van Justitie).

This appeal was rejected on 3 July 1984 on the ground that the

first applicant's husband, although in temporary employment at the

time of the appeal, would not have sufficient means to support the

applicants in the near future.

The first applicant thereupon appealed to the Council of

State's Division for Jurisdiction (Afdeling Rechtspraak van de Raad

van State), which rejected the appeal on 12 December 1986 on the same

ground.

According to Dutch law this decision also affects the position

of the second applicant, although she was born in the course of the

proceedings and was therefore not an appellant in these proceedings.

The effect of this decision is that the applicants must leave

the Netherlands voluntarily or risk expulsion.

According to the statement of a psychiatrist, the first

applicant's husband is extremely depressed and has suicidal tendencies

because of the impending expulsion of his wife and daughter.

The applicants submit that they would have to live in

impoverished conditions if they had to return to Turkey, because their

family has financial problems.

It appears that the Government's policy concerning the

position of relatives of second generation immigrants wishing to join

them in the Netherlands has changed, since the decision of the Deputy

Minister of Justice was taken in that lack of sufficient means of

subsistence can now only be held against such an immigrant if he can

be held responsible for it.

The decision by the Council of State's Division for

Jurisdiction was based on the situation at the time of the decision by

the Deputy Minister of Justice and therefore on the old policy.

The applicants' lawyer, on 11 March 1987, asked the police

whether they could request another residence permit and were told that

they could not.

The following day the applicants requested a residence permit

in writing. The Head of Police of The Hague, taking into account the

new policy, refused the new request on 21 April 1987.

The applicants appealed against this decision to the Deputy

Minister of Justice. This appeal was given suspensive effect.

On 17 August 1987, the Deputy Minister of Justice granted them a

temporary residence permit valid until 23 March 1988 under the

condition that the first applicant lives with her husband.

&_COMPLAINTS&S

The applicants allege that their impending expulsion has caused

severe damage to the mental health of the first applicant's husband.

They claim that this constitutes inhuman treatment of the

husband as well as of the applicants. They invoke Article 3 of the

Convention.

The second complaint concerns the composition of the Council

of State's Division for Jurisdiction.

The applicants claim that as a result of the composition of

the court, they were not accorded a fair trial by an independent and

impartial tribunal.

They allege that, as a result of the decision by the Council

of State's Division for Jurisdiction, the first and second applicants

will be deprived of their civil right to live with their husband and

father respectively and to be supported by him.

They invoke Articles 6, 8 and 12 of the Convention.

Furthermore, they claim that neither the Council of State's

Division for Jurisdiction nor the Minister of Justice can be

considered to be an effective remedy because they are not independent

and impartial tribunals.

Moreover, they are deprived of the possibility of making a new

request for a residence permit and thus of obtaining a decision which

is based on the new policy. In this respect they invoke Article 13 of

the Convention.

Finally they complain that the first applicant has been

discriminated against because the Council of State's Division for

Jurisdiction took into account that her husband could be held

responsible for being dismissed.

According to the applicants this was not in accordance with

the policy of that time. They invoke Article 14 of the Convention.

&_PROCEEDINGS BEFORE THE COMMISSION&S

The application was introduced on 12 March 1987 and registered

on 29 April 1987. In a letter from the applicants dated 10 September

1987, the Commission was informed that the first applicant had been

granted a temporary residence permit. The Secretariat consequently

requested the applicants to indicate whether they wish to maintain

their application before the Commission. By letter of 28 October 1987,

the applicants informed the Commission that they wish to withdraw

their application.

&_REASONS FOR THE DECISION&S

The Commission notes that the applicants have now been

granted a temporary residence permit and wish to withdraw their

application. The Commission sees no reasons relating to the general

interest to continue an examination of their application. The

Commission, therefore, accedes to the applicants' request to withdraw

their application.

Having regard to Rule 44 para. 1 (b) of its Rules of

Procedure, the Commission

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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