Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13293/87

by S. and N. M.

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 November 1987, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

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. 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 15 October 1987,

together with a request to apply Rule 36 of the Commission's Rules of

Procedure, on behalf of S. and N. M. by their grandparents

against the Netherlands and registered on the same day under file

N° 13293/87;

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

Rules of Procedure of the Commission;

Having regard to the decision of the Commission on

16 October 1987 to invite the parties to submit further information

on the application;

Having regard to the information submitted by the Government

on 4 November 1987 and to the applicants' reply received on

12 November 1987;

Having regard to the decision of the President on 4 November 1987

not to apply Rule 36 of the Rules of Procedure;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicants are Moroccan citizens, the first born in 1978

and the second in 1980. They are at present living unlawfully in the

Netherlands and represented in the proceedings before the Commission

by Mr. B.G. van Haren, a lawyer practising in Zeist.

The applicants first entered the Netherlands with their father

in 1984. When a residence permit was denied to the father, they were

deported to Morocco on 28 March 1985.

The applicants' parents divorced on 25 January 1985. The

father, of whom the applicants allege that he is a psychopathic and

cannot take care of his children, conferred the custody under Moroccan

law to his mother on 30 August 1985. The applicants' grandmother, who

has a residence permit to live in the Netherlands, subsequently

brought the applicants to the Netherlands on 12 December 1985.

On 16 December 1985, the applicants requested a residence

permit which was refused on 12 September 1986. The Deputy Minister of

Justice (Staatssecretaris van Justitie) motivated her decision on the

ground that the applicants' mother could take care of them in Morocco,

and that the applicants never belonged to the family unit of their

grandparents. A request for review was rejected on 27 January 1987.

An appeal to the Council of State (Raad van State), which does not

have suspensive effect, is still pending.

The applicants then seized the President of the Regional Court

(Arrondissementsrechtbank) of Utrecht in injunction proceedings (kort

geding) to prevent their deportation pending the outcome of the

procedure before the Council of State. This request was rejected on

8 October 1987. An appeal against this decision before the Court of

Appeal (Gerechtshof) of Amsterdam is still pending.

The applicants are now in hiding.

Parties agree that the father's whereabouts are unknown, that

he does not have a steady residence in Morocco and that he is not a

legal resident in the Netherlands.

&_COMPLAINTS&S

1. The applicants, invoking Article 3 of the Convention, fear

that, in the case of deportation to Morocco, they will not receive an

adequate treatment. They submit that their mother does not want to

take care of them and has abandoned them in order to remarry. Their

father has no known address and is very ill.

2. The applicants fear that their deportation would put an end to

their family relations with their grandparents. They submit that they

are integrated in the Netherlands where they go to school. They

allege a violation of Article 8 should their deportation take place.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced and registered on

15 October 1987, together with a request for application of Rule 36

of the Commission's Rules of Procedure, in order to prevent the

applicants' deportation to Morocco.

On 16 October 1987, after a preliminary examination of the

admissibility of the application, the Commission decided to adjourn

its decision on the Rule 36 request and instructed the Secretary to

request the parties to submit further information in accordance with

Rule 42 para. 2 (a) of its Rules of Procedure.

The information submitted by the Netherlands Government

reached the Commission's Secretariat on 4 November 1987.

On the same day, the President of the Commission decided not

to apply Rule 36 of the Rules of Procedure.

The applicants' reply to the information provided by the

Government was received on 12 November 1987.

&_SUBMISSIONS OF THE PARTIES&S

A. The Government

The Netherlands Government intend to deport the applicants to

Morocco since their application for residence with their grandparents

has been rejected in two instances and the President of the Regional

Court of Utrecht decided that no suspensive effect should be given to

the decision of the Deputy Minister of Justice to deport the children.

The deportation will take place as soon as the two girls, who are in

hiding, have been found and measures are taken that they will be taken

care of as soon as they arrive in Morocco.

The mother of the children is willing to take care of the

children. The Netherlands Government received information from a

cousin of the mother, residing in the Netherlands, that the mother

would very much like to have her children back. Her family-in-law, in

particular the grandparents, however, do everything, including the use

of forged proof, to keep the girls with them in the Netherlands.

The Netherlands Government are quite sure that the mother can

and will take care of her daughters. Contacts between the Netherlands

Embassy in Morocco and the mother have been established. The former

will be responsible for the children the moment they set foot on

Moroccan soil, in order to hand them over to the custody of their

mother.

B. The applicants

The applicants contest the statements of the Government.

They repeat that their mother is unwilling to take them into her

new family and allege that she has only recently confirmed this by

telephone to the family in the Netherlands. The applicants submit

letters from their school doctor who observes that they were

neglected, uncared-for children with stunted growth when they arrived

in the Netherlands and that, at this day, the grandparents are their

'psychological parents'.

The applicants deny that they will be supported by their

mother. As for the undertaking of the Netherlands Government, which

does not specify any time-limit, the applicants maintain that it

cannot give any guarantee beyond the moment that they are handed over

to their mother, whilst the Moroccan Government have no public foster

plan for neglected children.

THE LAW

1. The Commission does not find it necessary to decide whether

the applicants' grandparents are able to lodge an application under

Article 25 (Art. 25) of the Convention on behalf of their

grandchildren, as the application is in any case inadmissible for the

following reasons.

2. The applicants fear that they will not receive adequate care

in Morocco given the fact that the mother repudiated them and that the

father has no known address and is very ill. They invoke Article 3

(Art. 3) of the Convention.

The Commission notes that the proceedings pending before the

Council of State against the decision of the Deputy Minister and

the proceedings before the Court of Appeal against the decision

of the President of the Regional Court have no suspensive effect and

that the applicants are susceptible to deportation as soon as they are

found. According to the Commission's constant case-law, remedies

which do not suspend the execution of the decision to expel an

applicant are not effective remedies within the meaning of Article 26

(Art. 26) of the Convention and need not be exhausted, where the

allegation is that of a breach of Article 3 (Art. 3) of the Convention

(No. 10760/84, Dec. 17.5.84, D.R. 38 p. 224).

The Commission refers to its case-law according to which the

right of a person not to be expelled or extradited is not as such

included among the rights and freedoms mentioned in the Convention but

that a deportation could, in certain exceptional circumstances, raise

an issue under Article 3 (Art. 3) where there is a serious reason to believe

that the person concerned will be subjected to treatment prohibited by

that provision in the receiving country (cf. No. 8581/79, Dec. 6.3.80,

D.R. 29 p. 48; No. 10479/83, Kirkwood v. the United Kingdom,

Dec. 12.3.84, D.R. 37 p. 158).

However, the Commission finds no indication that the

applicants would be subjected to such a treatment by reason of the

fact that, after an unfortunate divorce of their parents, they would

now be in the custody of their mother and live in their country of

origin where they have lived all but two years of their young lives

instead of living with their grandparents.

It is true that the applicants allege that their mother

repudiated them and is not willing to look after them.

The Government maintain that this allegation is false and only

shows the willingness of the grandparents to keep the applicants with

them against the wish of their daughter-in-law.

In any case, the applicants have failed to submit any evidence

that could substantiate this claim. The Commission does not consider

that this uncorroborated declaration constitutes satisfactory prima

facie evidence.

Moreover, the respondent Government have undertaken to take

care of the applicants until they can be handed over to their mother.

The Commission concludes that an examination of the complaint,

as it has been submitted, does not disclose any appearance of a violation

of Article 3 (Art. 3) of the Convention.

This part of the application is accordingly manifestly

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

Convention.

3. The applicants also complain that a new deportation would

disrupt their school and family life in the Netherlands. They invoke

Article 8 (Art. 8) of the Convention.

The Commission is not required to determine whether in this

respect domestic remedies have been exhausted in accordance with

Article 26 (Art. 26) of the Convention as it finds that this complaint

is in any event inadmissible as being manifestly ill-founded, for the

following reasons.

Firstly, the applicants entered the Netherlands secretly and

never received a residence permit. The Commission also notes that the

repeated migration of the applicants to and from Morocco was the

result of the family's own action, who brought the applicants

illegally to the Netherlands, this being an act for which the

Netherlands State cannot be held responsible (cf. No. 9105/80,

Dec. 6.7.81, not published).

Secondly the applicants, their parents being divorced, will be

sent to their mother with whom they lived previously. The Commission

finds no indication that the Netherlands authorities acted

inconsistently with the right to respect for family life guaranteed

in Article 8 (Art. 8) of the Convention in giving precedence to the mother,

being the person with the closest family tie. As already observed

above, there is no evidence before it that could substantiate the

allegation that the applicants' mother is unwilling to take care of

them.

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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. and N. M. v. NETHERLANDS

S. and N. M. v. NETHERLANDS

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