Lexploria

The European Commission of Human Rights sitting in private on

9 May 1986, the following members being present:

MM C.A. NØRGAARD, President

G. SPERDUTI

F. ERMACORA

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 August 1985 by H. A.

against the Netherlands and registered on 9 September 1985 under file

No. 11733/85;

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 facts of the case, as they have been submitted by the applicant,

may be summarised as follows. The applicant is a Turkish citizen,

born in 1941 and presently residing at Dordrecht, the Netherlands. He

is represented by Mrs. M.D. van Aller, a lawyer practising at

Amsterdam.

In 1974, the applicant entered the Netherlands on a provisional

residence permit. In November 1974, this was replaced by a residence

permit valid until 16 September 1975 and eventually extended until

14 April 1981.

From 1974 until 1980, the applicant either worked or received social

security benefits. Since October 1980, the applicant has been

receiving unemployment benefits (RWW). The applicant's request for

extension of his residence permit was refused by the head of the

Municipal Police of Dordrecht on 9 November 1982. The applicant

thereupon introduced a request for revision with the Deputy Minister

of Justice (Staatssecretaris van Justitie) which was, however, refused

on 14 February 1983. A subsequent appeal was rejected on

22 April 1985 by the Council of State's Division for Jurisdiction

(Afdeling Rechtspraak van de Raad van State).

The Council considered, inter alia, that according to Section 11 of

the Dutch Aliens Act (Vreemdelingenwet) a residence permit could be

refused in the general interest, and noted that the applicant had lost

his job because of unlawful absence from work, and had been receiving

unemployment benefits since. The Council concluded that the

authorities could have reasonably decided that the applicant's request

for a residence permit was to be refused.

COMPLAINTS

The applicant complains that that Council of State's Division for

Jurisdiction (Afdeling Rechtspraak van de Raad van State) is not an

impartial and independent tribunal. He alleges that the members of

the Division for Jurisdiction only defend the interests of the

Netherlands government, resulting in a restrictive policy towards

aliens. In connection with this complaint he alleges that both the

Council of State's Division for Jurisdiction and the procedure

relating to requests for revision to the Minister of Justice are not

effective remedies. The applicant invokes Articles 6 and 13

(art. 6, art. 13) of the Convention in this respect.

Furthermore, the applicant complains that his expulsion to Turkey

constitutes an unjustified interference with his right to respect for

private life, contrary to Article 8 (art. 8) of the Convention. He

alleges that, according to the European Social Charter, expulsion is

not allowed on the mere ground that he receives social security

benefits.

The applicant also alleged that, in addition to being a victim of a

violation of Articles 6, 8 and 13 (art. 6, art. 8, art. 13) in

themselves, he has been the victim of a violation of Article 14

(art. 14) of the Convention read in conjunction with these Articles

(art. 6, art. 8, art. 13).

Finally, the applicant complains that, as a result of his expulsion,

he is deprived of his social security benefits, and he invokes

Article 1 of Protocol No. 1 (P1-1) to the Convention.

THE LAW

1. The applicant has complained that the expulsion procedure in

the Netherlands constituted a denial of his rights under Article 6

para. 1 (art. 6-1) of the Convention which ensures, inter alia,:

"In the determination of his civil rights and obligations... everyone

is entitled to a fair and public hearing within a reasonable time by

an independent and impartial tribunal established by law...."

In addition, he complained of a violation of Article 13 (art. 13)

of the Convention which provides that:

"Everyone whose rights and freedoms as set forth in this Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity."

The Commission recalls that a decision as to whether an alien should

be allowed to stay in a country is a discretionary act by a public

authority, which does not involve as such the determination of civil

rights within the meaning of Article 6 para. 1 (art. 6-1) of the

Convention (Dec. 8244/78, 2.5.79, D.R. 17 p. 149 and Dec. 7902/77,

18.5.77, D.R. 9 p. 224). It follows that this part of the application

must be rejected as incompatible ratione materiae within the meaning

of Article 27 para. 2 (art. 27-2) of the Convention.

Consequently the applicants' complaint under Article 13 (art. 13)

of the Convention, read in conjunction with Article 6 (art. 6)

of the Convention must also be rejected as being incompatible ratione

materiae with the provisions of the Convention.

2. Furthermore, the applicant has complained that his expulsion

constitutes an unjustified interference with his right to respect for

private life. He alleges a violation Article 8 (art. 8)

of the Convention which provides, inter alia:

"Everyone has the right to respect for his private and family life,

his home and his correspondence..."

The Commission, however, finds that a disruption of private life is

the inevitable consequence of any deportation which is recognised

under the terms of Article 5 para. 1 sub-para. (f) (art. 5-1-f) of the

Convention, and cannot in principle be regarded as an interference

with the right to respect for private life protected by Article 8

(art. 8) of the Convention. The applicant has not submitted any

evidence which would suggest that this principle should be departed

from in the present case. The Commission, therefore, finds that there

has been no interference with the applicant's right to respect for his

private life and it follows that this part of the application must

also be rejected as manifestly ill-founded within the meaning of

Article 27 para. 2 (art. 27-2) of the Convention.

3. Moreover, the applicant has complained that he has been the

victim of a violation of Article 14 (art. 14) of the Convention read in

conjunction with Articles 6, 8 and 13 (art. 6, art. 8, art. 13).

Article 14 (art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this Convention

shall be secured without discrimination on any ground such as sex,

race, colour, language, religion, political or other opinion, national

or social origin, association with a national minority, property,

birth or other status. "

The Commission, however, found above that the applicant's complaints

under Articles 6 and 13 (art. 6, art. 13) of the Convention were

incompatible ratione materiae with the provision of the Convention.

His complaints under Article 14 (art. 14) of the Convention read in

conjunction with Articles 6 and 13 (art. 6, art. 13) of the Convention

must therefore also be rejected as being incompatible ratione materiae

with the provision of the Convention, within the meaning of Article 27

para. 2 (art. 27-2) of the Convention.

In addition, the Commission finds no indication that the applicant has

been discriminated against in his enjoyment of the rights guaranteed

by Article 8 (art. 8) of the Convention contrary to Article 14

(art. 14) of the Convention. His status as an alien would in itself

provide objective and reasonable justification for his being subject

to different treatment in the field of immigration law to persons

holding Netherlands citizenship. This complaint, accordingly, is also

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

(art. 27-2) of the Convention.

4. Finally, the applicant alleges that as a result of his expulsion

he is deprived of his social security benefits. He also alleges that

he cannot take his possessions to Turkey. He invokes Article 1 of

Protocol No. 1 (P1-1) of the Convention which provides:

"Every natural or legal person is entitled to the peaceful enjoyment

of his possessions. No one shall be deprived of his possession except

in the public interest and subject to the conditions provided for by

law and by the general principles of international law."

The Commission notes that the Social Security benefits concerned are

unemployment benefits (RWW) and are set up as a general insurance

(Volksverzekering) based on the principle of social solidarity. No

direct links exist between the level of contributions and the benefits

awarded. Consequently, a person does not have, at any given moment,

an identifiable and claimable share in the fund (cf. Dec. 10503/83,

16.5.85 unpublished).

Therefore, the Commission is of the opinion that in the above

circumstances the right to benefits cannot be considered to constitute

a property right which could be described as "possessions" within the

meaning of Article 1 of Protocol No. 1 (P1-1) to the Convention.

Accordingly, the applicant's complaints under this provision must be

rejected under Article 27 para. 2 (art. 27-2) of the Convention as

being incompatible ratione materiae with the provisions of the

Convention.

With regard to the applicant's complaint that he cannot take his

possessions along to Turkey, the Commission considers that he has

failed to substantiate these allegations. Therefore, the Commission

finds that the remainder 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

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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A. v. THE NETHERLANDS

A. v. THE NETHERLANDS