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

L.B. against the Netherlands and registered on 28 June 1985

under file No. 11619/85;

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 on 1 January 1956 and at

present residing at Amsterdam. He is represented by Mrs. M. D. van

Aller, a lawyer practising at Amsterdam.

In January 1975 the applicant illegally entered the Netherlands and on

8 August 1975 he started working at a restaurant, where he has been

employed since.

In a judgment of 22 May 1980, the applicant was convicted by the

police magistrate (Politierechter) of Amsterdam of a criminal offence

during the Queen's coronation on 30 April 1980. He was sentenced to

four months' imprisonment, of which two months were conditional.

On 13 August 1981, the applicant was informed that his employer was

eligible for a permit to employ him in accordance with the

transitional regulation (Overgangsbepaling) of the Foreign Workers

Labour Act (Wet Arbeid Buitenlandse Werknemers). This permit was

granted on 2 September 1981.

On 19 August 1981, the applicant's request for a residence permit was

rejected because he had come to the Netherlands without a provisional

residence permit and was therefore to be considered as an illegal

resident. In addition, he had infringed public order by the above

criminal offence. On the same day the applicant was detained, pending

expulsion. Subsequently the applicant was released pending his

request for revision. This request, which had been given suspensive

effect, was however rejected by the Deputy Minister of Justice

(Staatssecretaris van Justitie) on 3 March 1982.

On 25 March 1982, thereupon, the applicant appealed this decision to

the Council of State's Division for Jurisdiction (Afdeling Rechtspraak

van de Raad van State). However, on 11 March 1985 his appeal was

rejected. 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. In view of the

prison sentence imposed on the applicant and the fact that the

applicant had been an illegal immigrant at least until he committed

the offence, there were reasonable grounds for the decision of the

authorities to refuse the applicant's request for a residence permit

in the general interest notwithstanding the permit promised to the

applicant's employer.

COMPLAINTS

The applicant complains that he will be expelled to Morocco because he

was sentenced to two months' imprisonment. According to the

applicant, this is in contravention of the Dutch Aliens Circular

(Nederlandse Vreemdelingencirculaire) and he complains that he is

subjected to inhuman and degrading treatment contrary to Article 3

(art. 3) of the Convention because the expulsion forces him to leave

the country where he had settled down and had been working for three

years. The applicant has also drawn attention to the fact that he is

involved in civil proceedings in the Netherlands concerning his claim

to a considerable sum of money.

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. He

alleges a violation of Article 5 (art. 5) of the Convention in this

respect.

Moreover, the applicant invokes Article 6 (art. 6) of the Convention

because he is of the opinion that he is prosecuted twice for the same

offence because he was sentenced to two months' imprisonment and is

also to be expelled to Morocco.

In addition, he complains that his expulsion to Morocco constitutes an

unjustified interference with his right to respect for private life.

He alleges that the policy of the Dutch Aliens Circular did not take

into account transitional regulations for illegal foreign workers and

that the Council of State's Division for Jurisdiction in the absence

of further regulations took a wrong decision by forcing him to leave

the Netherlands and give up his possibilities to earn a living,

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

Finally, the applicant alleges that his right to marry has been

restricted because he wanted to marry a Dutch woman but is afraid that

the Dutch Government will consider this as a marriage of convenience.

THE LAW

1. The applicant complains that he is subjected to inhuman and

degrading treatment. He has alleged a violation of Article 3 (art. 3)

of the Convention which reads:

"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 he could 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 has further complained 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 has invoked

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

provides inter alia:

"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."

However, the Commission notes that a deportation order was made

against the applicant but that he has apparently not been arrested or

detained.

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 has also complained about a violation of

Article 6 (art. 6) of the Convention because he was prosecuted twice

for the same offence.

Article 6 (art. 6) of the Convention provides inter alia:

"1. In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair and

public hearing ... by an independent and impartial tribunal

established by law...."

The Commission has considered, in the context of previous cases

brought before it, the question of the applicability of Article 6

para. 1 (art. 6-1) of the Convention to deportation matters. The

Commission has held in these cases that a decision as to whether an

alien should be allowed to stay in a country is a discretionary act by

a public authority and that it 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. No. 8144/78, 2.5.79, D.R. 17

p. 157).

It follows that Article 6 para. 1 (art. 6-1) of the Convention is not

applicable in the present case and that this part of the application

must therefore also be considered as incompatible ratione materiae

with the provisions of the Convention, within the meaning of

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

4. Furthermore, the applicant has complained of an unjustified

interference with his right to respect for private life and he has

invoked 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, however, 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). 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.

5. Finally, the applicant has complained of a violation of his

right to marry. He has alleged a violation of Article 12 (art. 12)

of the Convention which reads:

"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, is of the opinion that the applicant has not

submitted any evidence capable of showing that his right to marry has

been restricted as a result of having to leave the Netherlands.

Consequently, 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)

Menu

B. v. THE NETHERLANDS

B. v. THE NETHERLANDS

LEXI