FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39322/98

by Hüseyin and Ercan CİNCİL

against the Netherlands [Note1]

The European Court of Human Rights ( First Section) sitting on 19 January 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr G. Jörundsson ,

Mr R. Türmen ,

Mr C. Bîrsan ,

Mrs W. Thomassen ,

Mr R. Maruste , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 September 1997 by Hüseyin and Ercan Cincil against the Netherlands and registered on 13 January 1998 under file no. 39322/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are both Turkish nationals, born in 1932 and 1979 respectively, and reside in Amsterdam. The first applicant is the paternal grandfather of the second applicant. The applicants are represented by Ms M.D. van Aller , a lawyer practising in Amsterdam.

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

The first applicant emigrated in 1972 from Turkey to the Netherlands. He has eight adult children. Four of his children, including the second applicant’s father, live in Turkey, three children live in the Netherlands and one child lives in Germany.

In 1983, the first applicant’s wife moved from Turkey to the Netherlands. Until that moment and as from his birth, she had cared for the second applicant, Ercan , as his mother was suffering from hemiplegia (partial paralysis of one side of the body), high blood pressure and encephalopathy (degeneration of brain tissue) whilst his father was leading a wandering existence as a migrant worker in Turkey.

Ercan and his older brother Ilkay were taken into the household of their paternal uncle H. and his wife. Ercan’s younger sister Sevilay was living partly in the household of H. and partly in the household of her paternal aunt N. Ercan’s mother was initially cared for by her mother. After her mother’s death, Ercan’s mother is cared for by different relatives.

After Ercan had finished his primary education, his uncle H. refused to continue to provide for Ercan’s care given his small house and difficult financial situation.

On or about 30 October 1990, Ercan joined his grandparents in the Netherlands and, on 18 January 1991, registered with the immigration authorities. On 28 May 1991, the District Court judge ( kantonrechter ) of Amsterdam, with the consent of Ercan’s parents, awarded Ercan’s temporary custody ( tijdelijke voogdij ) to his grandparents as Ercan’s parents were not residing in the Netherlands. On 19 September 1991, the first applicant applied for a Dutch residence permit for Ercan on grounds of stay with his grandparents.

On 1 October 1991, the State Secretary of Justice ( Staatssecretaris van Justitie ) rejected the request. On 20 December 1991, the first applicant requested the State Secretary for a revision ( herziening ) of the decision of 1 October 1991, arguing inter alia that Ercan had no future in Turkey as his mother was seriously ill, his father always absent trying to earn a living whereas all other members of Ercan’s family in Turkey were living far below the poverty line and therefore could not provide for his care and upbringing.

On 14 October 1992, the State Secretary rejected the revision request. In the decision it was noted that the temporary custody had been awarded to the first applicant and his wife and that the first applicant was receiving social security benefits for incapacity for work. The State Secretary held that Ercan did not meet the conditions for entry as a foreign foster child and that Ercan did not qualify for a residence permit on grounds of extended family reunification as, before his arrival in the Netherlands, he had never in fact belonged to the family of his grandparents residing in the Netherlands. The State Secretary further did not find it established that Ercan’s father could not provide for his care given Ercan’s age and further considered that, in the course of the proceedings, only vague statements had been made about the place of residence of Ercan’s mother and her state of health and about the place of residence of Ercan’s brother and sister, for whom care apparently was possible in Turkey. The State Secretary found it had remained unclear why Ercan’s situation was different from that of his brother and sister. The State Secretary further considered that, like in the past, Ercan could be financially supported from the Netherlands. Although the State Secretary acknowledged there was family life within the meaning of Article 8 of the Convention between Ercan and his grandparents, it was held that there had been no interference with this family life in that he was not deprived of any residence title. The State Secretary further found no positive obligation under this provision of the Convention on grounds of which Ercan should be granted a residence permit.

On 11 November 1992, the first applicant filed an appeal with the Council of State ( Raad van State ).

In its decision of 12 March 1997, transmitted to the applicants’ lawyer on 3 April 1997, the Administrative Law Division ( Afdeling Bestuursrechtspraak ) of the Council of State rejected the appeal. It held that Ercan did not meet the conditions for entry as a foreign adoptive or foster child and accepted the reasons stated in the decision of 14 October 1992 for rejecting the request for a residence permit. The Administrative Law Division further found that there had been no interference with the applicants’ right to respect for their private and family life within the meaning of Article 8 of the Convention in that Ercan had not been deprived of any residence title allowing him to enjoy family life in the Netherlands and, referring to the Court’s findings in the case of Gül v. Switzerland (Eur. Court HR, judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, No. 3), found no positive obligations under Article 8 of the Convention on grounds on which Ercan should be granted a residence permit. It further rejected the argument that the refusal to grant Ercan a residence permit would violate his rights under Article 3 of the Convention in that he would be forced to live on the streets in Turkey.

COMPLAINTS

The applicants complain that the refusal to allow Ercan to take up residence with his grandparents in the Netherlands is contrary to Articles 8 and 12 of the Convention. They further complain that the refusal to grant Ercan a residence permit is contrary to Articles 3 of the Convention in that, if expelled to Turkey, he will be forced to live on the streets.

THE LAW

The applicants complain that the refusal to allow Ercan to take up residence with his grandparents in the Netherlands is contrary to Articles 8 and 12 of the Convention.

Article 8 of the Convention, insofar as relevant, reads as follows:

"1. Everyone has the right to respect for his private and family life …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of … the economic well ‑ being of the country…"

Article 12 of the Convention provides:

"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 Court considers that, under certain circumstances, there may be family life within the meaning of Article 8 of the Convention between grandparents and grandchildren (cf. Eur. Court HR, Bronda v. Italy judgment of 9 June 1998, to be published in Reports of Judgments and Decisions 1998, § 51).

The Court reiterates that the essential object of Article 8 of the Convention is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in effective “respect” for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, however, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (cf. Eur. Court HR, Ahmut v. the Netherlands judgment of 28 November 1996, Reports of Judgments and Decisions 1996-VI, No. 24, p. 2031, § 63).

The Court considers that the present case concerns the question whether the Netherlands authorities were under a positive obligation to allow Ercan to take up residence with his grandparents in the Netherlands, thus enabling the applicants to maintain and develop family life on its territory.

The extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. Moreover, where immigration is concerned, Article 8 of the Convention cannot be considered to impose on a State a general obligation to authorise family reunion on its territory (cf. Eur. Court HR, Gül v. Switzerland judgment of 19 February 1996, Reports of Judgments and Decisions 1996-I, No. 3, pp. 174-175, § 38; and Ahmut v. the Netherlands judgment, loc. cit., p. 2033, § 67).

The Court notes that Ercan has substantial links with Turkey where he has been born and raised and where moreover his parents, siblings and further relatives reside. It has further not appeared that there are any obstacles for the first applicant to provide financial support for Ercan’s care in Turkey or to return to Turkey.

In these circumstances, although accepting that Ercan’s situation in Turkey might be more difficult than in the Netherlands, the Court cannot find that the respondent State failed to strike a fair balance between the interests concerned.

Insofar as the applicants rely on Article 12 of the Convention, the Court is of the opinion that, even assuming that the applicants have duly exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention by having raised this complaint either in form or substance in the domestic proceedings, the facts of the case do not raise an issue under this provision of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

Insofar as the applicants complain that the refusal to grant Ercan a residence permit will force him to live in the streets in Turkey and thus violate his rights under Article 3 of the Convention, which provision prohibits torture, inhuman or degrading treatment or punishment, the Court is of the opinion that the facts of the case do not disclose any appearance of a violation of this provision of the Convention.

It follows that this part of the application must also be rejected as manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Michael O’Boyle Elisabeth Palm Registrar President [Note2]

[Note1] First letter in capital letters plus the article according to normal speech.

[Note2] “President” is also put if the Chamber is not presided over by the Section President (Section Vice-President or other judge according to seniority).