THIRD SECTION

DECISION

Application no. 71526/01 by Ali KÜÇÜKŞAHİ N against the Netherlands

The European Court of Human Rights (Third Section), sitting on 17 June 2008 as a Chamber composed of:

Josep Casadevall , President, Corneliu Bîrsan , Boštjan M. Zupančič , Egbert Myjer , Ineta Ziemele , Luis López Guerra , Ann Power , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 31 October 2000 ,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Ali Küçükşahin , is a Turkish national who was born in 1971 and is currently residing in Turkey . He wa s represented before the Court by Mr R. van Asperen , a lawyer practising in Groningen . The Dutch Government (“the Government”) we re represented by their Agent s , Ms J. Schukking and Mr R.A.A. Böcker , of the Ministry of Foreign Affairs.

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

The applicant first came to the Netherlands in February 1993, where he joined his wife whom he had married in Turkey in 1990. His wife, who has been living in the Netherlands since 1976, has both Turkish and Netherlands nationality. On 1 March 1993 the applicant requested, and was granted, a residence permit for the purposes of residing in the Netherlands with his spouse. The applicant had to seek yearly prolongations of this permit.

On 30 October 1995 a son, U., was born to the applicant and his wife.

The applicant ’ s marriage broke down in January 1997. That month, the applicant went back to Turkey , but he returned to the Netherlands in November 1997.

On 31 March 1998 the applicant requested the prolongation of his residence permit. He also requested that his permit be changed so that, instead of for the purposes of residing with his spouse, he be allowed to remain in the Netherlands for the purposes of finding work, in paid employment or self-employed. The Deputy Minister of Justice ( Staatssecretaris van Justitie ) refused the request on 9 June 1998. The applicant lodged an objection ( bezwaar ) against this decision, arguing that it breached Article 8 of the Convention.

Meanwhile, on 19 May 1998 , the applicant ’ s wife had filed for divorce. On 9 October 1998 the Groningen Regional Court ( arrondissementsrechtbank ) decided that, pending these proceedings, U. should live with his mother. The court further noted that the mother objected to the applicant having access to U. There had been some degree of access until May 1998, but the mother had put a stop to it when U. had displayed a – temporary – negative reaction. According to the court, it was not unusual for a young child to suffer such a reaction in cases where the father had been absent for a while. It considered that it would be beneficial for U. ’ s future development to get to know his father and that the applicant should be given the chance to establish and solidify a bond with his son. To this end, the court decided that, on a provisional basis, the applicant would have access to U. for three hours every other Saturday. If this went well, access might be increased at a later stage.

The divorce was pronounced on 15 December 1998 . The Groningen Regional Court adjourned a final decision on the questions of parental authority ( ouderlijk gezag ) and access. On 24 December 1998 the court extended the provisional access arrangement to five hours every other Saturday.

The applicant was heard by an official committee on his objection against the refusal to prolong his residence permit on 12 January 1999 . On this occasion it appeared that the applicant was not aware that the duration of his access visits to U. had been increased. The applicant further stated that he was in paid employment but that, due to a number of debts he had to pay off, he was not yet able to contribute financially to U. ’ s upbringing.

On 1 April 1999 the Groningen Regional Court again examined the issues of access and paternal authority. Although it was conceivable that a possible future – forced or voluntary – return to Turkey of the applicant might pose practical problems as far as the joint exercise of parental authority was concerned, the court found that, at the present time, there were no reasons why both parents should not continue to exercise this authority jointly. It adjourned a final decision on the issue but did extend the access arrangement to eight hours every other Saturday.

On 28 September 1999 the Regional Court took a final decision as to the access arrangement: U. was to spend one weekend in two with the applicant. The court further rejected the request of U. ’ s mother to be solely entrusted with parental authority as it considered that the difficulties she experienced in communicating with the applicant were insufficient reason for such a decision. The court did, nevertheless, see merit in the mother ’ s argument that joint parental authority would cause her practical problems if the applicant were to be expelled. For that reason, the court adjourned a final decision on the matter until such time as the proceedings on the applicant ’ s request for prolongation of his residence permit had come to an end.

On 1 December 1999 the Deputy Minister of Justice dismissed the applicant ’ s objection in the residence proceedings. Although the Deputy Minister accepted that this decision constituted interference with the applicant ’ s right to respect for family life, it was held that this interference was justified for the protection of the economic well-being of the country. Given that, at the hearing on 12 January 1999, the applicant had proved unaware of a change in the number of hours he was allowed to see his son, the Deputy Minister doubted whether the applicant actually gave effect to the access arrangement. Finally, it had not appeared that the applicant made a financial contribution towards his son ’ s upbringing.

The applicant lodged an appeal to the Regional Court of The Hague, sitting in Zwolle , against the Deputy Minister ’ s decision. He argued that, as of 7 September 1998 , he had been in paid employment and he was also intending to start paying maintenance. His son had been born from his marriage to U. ’ s mother and they had lived together as a family for some time. Pursuant to the access arrangement in force, he now spent one weekend in two with U. There existed a close bond between father and son. Moreover, the applicant had joint parental authority of U., which he would be unable to exercise if he were forced to leave the Netherlands .

In May 2000 the applicant started paying maintenance to an amount of 200 Netherlands guilders (90 Euros) per month.

On 13 June 2000 the Regional Court of The Hague, sitting in Zwolle , rejected the appeal. It noted that the applicant had chosen to leave the Netherlands in January 1997 and that he had only returned in November 1997. During this period he had apparently not considered it important to have contacts with his son. Although it was true that an access arrangement had been established, the Regional Court considered that it had been made insufficiently plausible ( onvoldoende aannemelijk ) that the applicant actually made use of these opportunities to spend time with his son. In this context it referred to the hearing before the official committee of 12 January 1999 , where it had appeared that the applicant was unaware of the fact that the access arrangement had been extended. The applicant had, furthermore, not sufficiently substantiated that he had been unable to pay maintenance. The Regional Court concluded that the close family ties ( gezinsband ) between the applicant and his son were not such that interference would not be justified. No further appeal lay against this decision.

An expulsion order ( last tot uitzetting ) was issued on 23 June 2000.

In a decision of 14 November 2000, the Groningen Regional Court awarded parental authority over U. exclusively to his mother. It found it established that there existed clear differences of opinion between the parents as to U. ’ s upbringing. U. ’ s mother had claimed, and this had not been disputed by the applicant, that his father did not in practice exercise parental authority. In the light of this, the Regional Court considered that U. would undergo a culture shock if the applicant would suddenly start involving himself with U. ’ s care and upbringing. Moreover, the mother would encounter problems when, on matters of importance, authorities required the signature of both parents. Therefore, it was in U. ’ s best interests that solely his mother be entrusted with parental authority. The Regional Court further noted that, although the parents were barely on speaking terms, they had nevertheless proved themselves capable of letting the importance of contacts between U. and his father prevail over their problematic relationship. As a result, the applicant had been having regular access meetings with U. for a considerable time by then. These meetings safeguarded the contact between the child and his biological father. In conclusion, the Regional Court was of the opinion that it was in U. ’ s best interests for the current situation to be continued and for the legal situation to be amended accordingly.

On 7 May 2001, following the introduction of the present application, the applicant once more requested a residence permit, this time for the purposes of exercising family life with his minor son. The Deputy Minister rejected this request on 9 April 2002 . The applicant lodged an objection and also requested the Regional Court of The Hague, sitting in Groningen , to issue a provisional measure in order for him to be allowed to await the outcome of the objection proceedings in the Netherlands .

In a decision of 27 January 2004, the provisional-measures judge ( voorzieningenrechter ) of the Regional Court held that, in view of the Regional Court ’ s decision of 13 June 2000, by which the refusal of the applicant ’ s request for prolongation of his residence permit had become final and conclusive, the applicant ’ s new request should be considered as a request for a first admission ( eerste toelating ). For such a request, it was required that the applicant be in possession of a provisional residence visa ( machtiging tot voorlopig verblijf ), obtained from a representation of the Netherlands in the country of origin. As the applicant did not hold such a visa, and as there were no reasons why he should be exempted from this requirement, the Regional Court dismissed the applicant ’ s objection as well as his request for a provisional measure.

After the present application had been notified to the Government and the parties ’ observations had been received – from which it appeared that the applicant had been expelled – , the applicant ’ s representative, Mr Van Asperen , was requested, on 1 February 2007, to provide further information, namely when the applicant had been expelled, whether he had continued to meet with his son in accordance with the terms laid down by the Groningen Regional Court until his expulsion and whether he had continued to maintain contact with his son after his expulsion. On both 20 February and 28 March 2007 Mr Van Asperen indicated that he required more time to reply to these questions as he could only contact his client through family members of the latter.

On 25 April 2007 Mr Van Asperen wrote that the applicant had been expelled to Turkey in the summer of 2004 and that, to the best of Mr Van Asperen ’ s knowledge, the applicant had continued to have contacts with his son until that time. As regards any contacts between father and son after the expulsion, Mr Van Asperen intended to contact directly the person in Turkey who was acting as the applicant ’ s interpreter.

The President of the Chamber, on 30 April 2007, granted Mr Van Asperen another two weeks to provide the information requested. Mr Van Asperen was further requested to clarify whether the contacts between the applicant and his son prior to the applicant ’ s expulsion had taken place in accordance with the terms laid down by the Groningen Regional Court .

On 9 May 2007 Mr Van Asperen transmitted to the Court a copy of an e-mail message he had received from the applicant ’ s interpreter, containing replies to the questions which had been put to Mr Van Asperen on 1 February 2007. According to this e-mail, the applicant had been expelled from the Netherlands on 1 April 2005. The applicant had not continued to meet with his son in accordance with the terms laid down by the Groningen Regional Court until the expulsion. Subsequent to his expulsion, the applicant had twice telephoned his son. When U. came to Turkey in order to visit relatives of his mother ’ s, maternal uncles did not allow the applicant to meet with him. The applicant had applied by telephone for a visa in order to visit U. in the Netherlands , but he had been told that a written invitation was required from his ex-wife in the Netherlands and such an invitation had not been forthcoming. Moreover, the applicant had also been unable to apply for a visa in view of financial difficulties.

A second request for further information was addressed to Mr Van Asperen on 21 May 2007 in which it was pointed out that, according to him, the applicant had continued to meet with his son until his expulsion, whereas according to the text of the e-mail from the applicant ’ s interpreter, this had not been the case – Mr Van Asperen was requested to indicate which version of events was correct . In case the applicant had not continued to meet with U. until his expulsion, Mr Van Asperen was asked to inform the Court when the meetings between father and son had ceased or their frequency decreased, and for what reason. Finally, Mr Van Asperen was requested whether the applicant had continued to pay a monthly amount of maintenance up to the moment of his expulsion and after his expulsion.

On 11 July 2007 Mr Van Asperen submitted a copy of an e-mail message he had received from a person in Turkey who stated that he was a friend of the applicant ’ s. According to this e-mail, the applicant had been unable to speak to his son by telephone as the boy ’ s mother did not permit this. The author of the e-mail further stated that the e-mail address used could be employed to contact the applicant. However, Mr Van Asperen informed the Court that attempts to reply to the e-mail had been unsuccessful. Moreover, his attempts to obtain answers to the Court ’ s questions from relatives of the applicant ’ s who were living in the Netherlands had not yielded any results either.

In view of the difficulties which Mr Van Asperen appeared to be experiencing in obtaining information from the applicant, the Court asked him on 29 January 2008 whether he was able to establish direct contact with his client. In his reply of 25 February 2008, Mr Van Asperen stated that he was not able to contact the applicant directly since he was unaware of the latter ’ s address and also did not know of another way in which he could contact his client in writing. Mr Van Asperen was, however, in touch with a person said to be a friend of the applicant ’ s, and he enclosed two e-mail messages from this friend of 15 October and 6 December 2007 from which, Mr Van Asperen submitted, it fell to be deduced that the applicant still had an interest in the examination of his application being continued.

According to the e-mail message of 6 December 2007, the applicant had met with his son every weekend until he was expelled. There had been a period of about six months when his ex-wife did not allow him to see U. , but this had been remedied after a court established an access arrangement. After the applicant ’ s expulsion, U. ’ s mother had not allowed the boy to spend time with his father during holidays, not even when U. had been in Turkey . Prior to his expulsion, the applicant had paid maintenance on three to five occasions. His financial situation had not permitted him to pay more often. While he was also unable to contribute financially to his son ’ s upbringing from Turkey , he did occasionally send gifts.

COMPLAINT

The applicant complained that the refusal by the Netherlands authorities to grant him continued residence constituted a violation of his right to respect for his family life , as guaranteed by Article 8 of the Convention.

THE LAW

The applicant raised a complaint under Article 8 of the Convention in relation to the refusal of the Dutch authorities to allow him to continue residing in the Netherlands . However, the question arises whether the applicant ’ s failure to provide his representative, Mr Van Asperen , with at least an address for correspondence and Mr Van Asperen ’ s subsequent difficulties in obtaining information from his client constitute circumstances in which the Court should decide to strike the application out of its list of cases in accordance with Article 37 of the Convention, which provision reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

The Court observes that it was initially provided with sufficient information about the facts of this case to allow it to reach the decision that notice of the application should be given to the Government and to invite the Government to submit observations on the admissibility of merits of the application. Nevertheless, it considered that a number of factual issues required clarification even after receipt of the parties ’ observations. In particular, the Court wished to ascertain the closeness of the ties between the applicant and his son so as to enable it to form an opinion on the question whether the refusal to allow the applicant to continue residing in the Netherlands was contrary to Article 8 of the Convention. However, in view of the replies received to its questions, the Court cannot but conclude that it has not been provided with the desired clarification.

Although it is true that the applicant did authorise Mr Van Asperen to represent him in the proceedings before the Court, it considers that this authority does not by itself justify pursuing the examination of the case. It has become clear that Mr Van Asperen and, consequently, the Court are not in a position to communicate directly with the applicant. Given the impossibility of establishing such communication, the Court considers that his representative cannot meaningfully continue the proceedings before it (see, mutatis mutandis , Ali v. Switzerland , judgment of 5 August 1998, Reports of Judgments and Decisions 1998-V , p. 2149 , § 32) .

Having regard to th e above considerations, the Court holds that further examination of the case is not justified. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to discontinue the a pplication of Article 29 § 3 and to strike the case out of the list. The Court, however, reserves the power to restore the case to the list in the event of fresh circumstances capable of justifying such a course.

For these reasons, the Court by a majority

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall Registrar President