Lexploria

The European Commission of Human Rights sitting in private

on 6 May 1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

M. A. TRIANTAFYLLIDES

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

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 12 June 1985 by

H. A. against the Netherlands and registered on 28 June 1985 under

file N° 11618/85;

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 Moroccan citizen, born in 1958. He is represented

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

On 22 February 1979, the applicant entered the Netherlands and on

20 June 1979 he married a Dutch woman. He subsequently obtained a

residence permit, dependent on his marriage. On 1 July 1979, the

applicant started working at a nursing home, where he has been

employed since. From the money he owns, he apparently supports his

family in Morocco.

The applicant separated from his wife on 8 May 1981 and subsequently

divorced. On 10 March 1983 he requested a new residence permit but

this was rejected on 26 May 1983 since the applicant did not meet the

criteria laid down in the Dutch Aliens Circular (Nederlandse

Vreemdelingencirculaire).

A request for revision to the Deputy Minister (Staatssecretaris) of

Justice was rejected on 6 October 1983 and finally the Council of

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

van State) rejected the applicant's appeal against this decision on

7 May 1985. 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 could not claim a residence permit on the ground that he had

been married to a Dutch woman since this marriage had not lasted for

at least three years, nor could he claim a residence permit on the

basis of any other regulation. The Council decided that there were

reasonable grounds for the decision of the authorities to refuse the

applicant's request for a residence permit.

It appears that the applicant was expelled on 20 November 1985. His

lawyer has indicated that he nevertheless wishes to pursue his

application.

COMPLAINTS

The applicant alleges a violation of Article 3 (Art. 3) of the

Convention. He complains that he is subjected to inhuman and degrading

treatment because the expulsion forces him to give up his living and

job in the Netherlands as a result of which he will no longer be able

to support himself and his family in Morocco.

Furthermore, the applicant complains that he is deprived of his

liberty and security of person because the policy of the Dutch

Government with regard to aliens forces him to return to Morocco.

The applicant invokes Article 5 (Art. 5) of the Convention in this

respect.

Moreover, the applicant claims that his expulsion to Morocco

constitutes an unjustified interference with his right to respect for

private life. He alleges that the policy of the Netherlands

Government, which does not allow him to get an independent residence

permit after his divorce, constitutes a violation of Article 8

(Art. 8) of the Convention. In addition the applicant alleges that the

Netherlands authorities violated Article 12 (Art. 12) of the

Convention because they refused to give him an independent residence

permit after his divorce.

Finally, the applicant states that the policy of the Netherlands

Government leads to a collective expulsion of aliens because there are

many aliens who are in the same position as the applicant, and he

invokes Article 4 of Protocol No. 4 (P4-4) to the Convention.

THE LAW

1. The applicant has complained of inhuman and degrading

treatment because the expulsion forces him to give up his living and

job in the Netherlands. He invokes Article 3 (Art. 3) of the

Convention which provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that the expulsion or extradition of an

individual could, in certain exceptional cases, raise an issue under

the Convention and in particular under Article 3 (Art. 3) when there are

serious reasons to believe that the person convicted would be

subjected to treatment prohibited by that provision in the State to

which he is to be deported (cf. e.g. Dec. No. 6315/73, 30.9.74,

D.R. 1 p. 73).

However, the Commission is of the opinion that in the present case

there are no indications that the applicant's treatment in Morocco

would render his expulsion contrary to Article 3 (Art. 3)

of the Convention.

This part of the application must therefore be rejected as manifestly

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

of the Convention.

2. The applicant also complains that he is deprived of his

liberty and security of person because the policy of the Dutch

Government forces him to return to Morocco and he invokes Article 5,

para. 1, sub-para. f (Art. 5-1-f) of the Convention which provides:

"1. Everyone has the right to liberty and security of person. No one

shall be deprived of his liberty save in the following cases and in

accordance with a procedure prescribed by law: ...

(f) the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a person

against whom action is being taken with a view to deportation or

extradition."

The Commission notes that a deportation order was made against the

applicant but that he was apparently not arrested or detained before

the actual expulsion from the Netherlands. Insofar as the expulsion

involved a measure by which the applicant was deprived of his liberty,

it must be considered as having been taken in conformity with

Article 5, para. 1, sub-para. f (Art. 5-1-f) of the Convention.

Consequently, 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. The applicant further complains of an unjustified interference

with his right to respect for private life and he invokes Article 8

(Art. 8) which reads as follows:

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

his home and his correspondence."

The Commission considers that even assuming that there was an

interference with the applicant's right to respect for his private

life under Article 8 (Art. 8) of the Convention, this interference was

justified for one or more of the reasons set out in the second

paragraph of Article 8 (Art. 8), such as "prevention of disorder".

In this respect the Commission would emphasise the close connection

between the policy of immigration control and considerations

pertaining to public order (Dec. No. 8245/78, 6.5.81, D.R. 24 p. 98

ff). Consequently, 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.

4. Furthermore, the applicant has complained of a violation of

his right to marry, and he has relied on Article 12 (Art. 12) of

Convention which provides that:

"Men and women of marriageable age have the right to marry and to

found a family, according to the national laws governing the exercise

of this right."

The Commission, however, notes that the applicant has not established

that his expulsion would prevent him from marrying or that his right

to marry has in any way been restricted.

It follows that this part of the application is also manifestly

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

of the Convention.

5. Finally the applicant complains that the policy of the Dutch

Government leads to a collective expulsion of aliens and he invokes

Article 4 of Protocol No. 4 (P4-4) to the Convention which provides:

"Collective expulsion of aliens is prohibited."

In the view of the Commission "collective expulsion of aliens" means

any measure of the competent authority compelling aliens as a group to

leave the country, except where such a measure is taken after and on

the basis of a reasonable and objective examination of the particular

cases of each individual alien of the group (Dec. No. 7011/75,

3.10.75 D.R. 4 p. 235).

The Commission finds that the applicant has not demonstrated that

there has been any decision by the Netherlands authorities which could

be said to raise any issue under this provision and it follows that

this complaint must also be rejected as being 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

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