THIRD SECTION

DECISION

Application no. 66994/12 Mushin Ahmad ABDULRAHMAN against the Netherlands

The European Court of Human Rights (Third Section), sitting on 5 February 2013 as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar ,

Having regard to the above application lodged on 14 December 2012,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mushin Ahmad Abdulrahman, is an Iraqi national, who was born in 1979 and lives in Zwolle. He was represented before the Court by Mr S.B. Kleerekooper, a lawyer practising in Hoenderloo.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 August 2003 the applicant entered the Netherlands where he applied for asylum. He did not have any travel or identity documents. This asylum request was rejected in proceedings in which the final ruling was given on 29 March 2007 by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). On 26 July 2007 and 12 June 2008 respectively, the applicant filed two further asylum requests. These were both rejected in separate sets of proceedings in which the final decision was taken on 22 October 2008 by the Administrative Jurisdiction Division.

In 2005, while the proceedings on his request for asylum were still pending, the applicant formed a relationship with Ms E.G., a Netherlands national. On 20 March 2006, a son, F., was born to the applicant and Ms E.G. and, on 9 January 2008, a daughter, L. Under the Netherlands nationality rules, both children are Netherlands nationals. On 2 April 2009, with the permission of Ms E.G., the applicant recognised his paternity. On 10 April 2009, the Regional Court ( rechtbank ) of Zwolle-Lelystad granted the applicant’s request that he and Ms E. were to exercise jointly the parental authority over F. and L.

On 12 May 2009 the applicant applied for a residence permit for the purposes of exercise of family life with his children in the Netherlands. This request was rejected by the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on 26 August 2009. The applicant’s appeal was rejected on 23 February 2011 by the Regional Court of The Hague sitting in Zutphen. In the course of these proceedings, the Regional Court was informed that the applicant and Ms E.G. had split up. The applicant’s further appeal was rejected on 24 April 2012 by the Administrative Jurisdiction Division. On the same day, the ruling of the Administrative Jurisdiction Division was sent to the applicant pursuant to article 8:79 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ).

In the meantime, on 14 March 2011, the applicant filed a fresh request for a residence permit for the purposes of exercise of his family life with and parental authority over the children F. and L. This request was rejected by the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel ; the successor to the Deputy Minister of Justice) on 26 October 2011. The applicant’s appeal against this decision was rejected on 30 March 2012 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. Pursuant to article 8:79 of the General Administrative Law Act, this judgment was sent to the applicant on 5 April 2012. Although the applicant could have filed a further appeal to the Administrative Jurisdiction Division, he did not do so.

COMPLAINT

The applicant complained under Article 8 of the Convention that the decision not to grant him a residence permit constitutes an unjustified interference with his right to respect for family life with his two children.

PROCEDURE BEFORE THE COURT

On 5 October 2012 the applicant’s representative sent a fax to the Registry, stating that he wanted to lodge a complaint under Article 8 of the Convention on behalf of the applicant. By letter of 18 October 2012 the Registry informed the applicant’s representative as follows:

“You should return the completed application form and all relevant documents not later than eight weeks from the date of the present letter. In other words, the date on which you send back the completed application form must not be later than 13 December 2012 . Failure to comply with this time-limit will mean that it is the date of the submission of the completed application form rather than that of your first communication which will be taken as the date of the introduction of the application. Your attention is drawn to the fact that it is the date of introduction that is decisive for compliance with the time-limit set out in Article 35 § 1 of the Convention (see para. 18 in enclosed notes to applicants).”

Together with the letter of 18 October 2012 the Registry sent an application package to the applicant, including Notes for Guidance. These Notes for Guidance contain – in so far as relevant – the following items:

“14. Applications to the Court may be made only by post (not by telephone). If you send your application by e-mail or fax, you must confirm it by post. ...

15. All correspondence relating to your complaint should be sent to the following address: ...

18. If you consider that your complaints concern one of the rights guaranteed by the Convention or one of the Protocols, and that the conditions described above are satisfied, you should fill in the application form carefully and legibly and send it, together with any documents required for its examination, as soon as possible and not later than eight weeks after the date of the first letter from the Registry. If the application form is not sent within those eight weeks, it will be the date on which you send your completed application form which determines whether you have complied with the six-month time-limit set out in Article 35 § 1 ... and not the date of your first letter. ...”

Accompanied by a covering letter dated 13 December 2012, the applicant’s representative submitted the original duly completed and signed application form also dated 13 December 2012, an original authority form duly signed by both the applicant and the representative, and copies of relevant supporting documents. These submissions were received by the Court on 19 December 2012. The envelope in which these documents had been sent to the Court by registered mail was postmarked 14 December 2012.

THE LAW

The applicant raised a complaint under Article 8 of the Convention in relation to the refusal of the Netherlands authorities to grant him a residence permit. Firstly, however, it is to be considered whether the complaint has been lodged within a period of six months from the date on which the final decision was taken, pursuant to Article 35 § 1 of the Convention.

Article 35 § 1 of the Convention, in so far as relevant, reads:

“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

Rule 45 of the Rules of Court reads, in so far as relevant:

“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing ...

3. Where applicants are represented in accordance with Rule 36, a power of attorney or written authority to act shall be supplied by their representative or representatives.”

Rule 47 of the Rules of Court reads:

“1 Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides others. ...

5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”

Paragraphs 1, 4 and 5 of the Practice Direction on the Institution of Proceedings, appended to Rules 45 and 47 of the Rules of Court and issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended most recently on 24 June 2009 [1] , provide as follows:

“1. An application under Article 34 of the Convention must be submitted in writing. No application may be made by phone. ...

4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.

Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.

5. Applicants may file an application by sending it by fax. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above.”

In this context the Court would emphasise that in principle it is to be provided with the original, duly completed and signed application form, and also of the original authority form duly completed and signed by both the applicant and his/her representative if the applicant is represented in the Strasbourg proceedings. Transmissions by fax of these documents are, without the originals of these documents being provided to the Court, insufficient to constitute a complete or valid application. Reference is made in this respect to paragraphs 1, 4 and 5 of the Practice Direction on the Institution of Proceedings, quoted above. The last-mentioned paragraph states specifically that it is the signed, original application which is to be despatched by post within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.

Reiterating its considerations in the case of Sabri Güneş v. Turkey ([GC], no. 27396/06, §§ 39-59, 29 June 2012) and noting that, in accordance with national law, the domestic rulings were sent to the applicant, the Court finds – in respect of the proceedings on the applicant’s first request for a residence permit based on his family life with his children in which the final ruling was sent to him on 24 April 2012 – that the six-month period started to run on 25 April 2012 (see Sabri Güneş , cited above, § 60). On the assumption that, as regards the proceedings on his second request for such a residence permit, the applicant can be regarded as having duly exhausted domestic remedies and that the judgment given on 30 March 2012 by the Regional Court as sent to the applicant on 5 April 2012 can be accepted as a final decision within the meaning of Article 35 § 1 of the Convention, the six-month period started to run on 6 April 2012.

In accordance with the established practice of the Convention organs and Rule 47 § 5 of the Rules of Court, the Court normally considers the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application (see Rule 47 § 5 of the Rules of Court, quoted above). Such first communication, which may take the form of a letter sent by fax, will in principle interrupt the running of the six-month period.

Recalling the aims of the six-month rule (see Sabri Güneş , cited above, §§ 39-42), the Court observes in the present case that – following receipt of his initial communication of 5 October 2012 – the applicant’s representative was notified by the Registry, pursuant to Rule 47 § 5 of the Rules of Court and paragraph 4 of the Practice Direction on the Institution of Proceedings, that he had to return the application form to the Court not later than 13 December 2012, i.e. eight weeks from the date of the Registry’s letter of 18 October 2012. The representative was further informed that if he failed to do so, the date of submission of the completed application form would be taken as the date of introduction of the application.

The Court observes that although the letter accompanying the original application form, as well as that form itself, are indeed dated 13 December 2012, the envelope containing the original application form, as well as the signed authority form and copies of all relevant documents, were posted on 14 December 2012. Having regard to the above considerations, the Court therefore finds that the date on which the envelope containing the original application form was postmarked, namely 14 December 2012, should be considered as the date of introduction of the present case.

The six-month period having started to run on 25 April 2012 in respect of the applicant’s first request for a residence permit based on his family life with his children and on 6 April 2012 in respect of the proceedings on his second request for such a permit, the Court accordingly concludes that the application is out of time for the purposes of Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Josep Casadevall Deputy Registrar President

[1] Practice Directions are appendices to the Rules of Court. They are available on the Court’s website and are sent to applicants on request.