AS TO THE ADMISSIBILITY OF

                      Application No. 11916/86

                      by J.S. and V.K.

                      against the Netherlands

        The European Commission of Human Rights sitting in private

on 13 March 1989, the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  L. LOUCAIDES

             Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 21 November

1985 by J.S. and V.K. against the Netherlands

and registered on 6 January 1986 under file No. 11916/86;

        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 first applicant, an Indian national, was born in 1957

and is at present living in Amsterdam.

        The second applicant is the son of the first applicant.  He

was born on 19 October 1983 in Amsterdam.

        The applicants are represented before the Commission by

Mr.  F.H. Koers, a lawyer practising in Amsterdam.

        The facts, as submitted by the applicants, may be summarised

as follows:

        After entering the Netherlands illegally on 25 September 1982,

the first applicant married a woman of Dutch nationality on

24 December 1982.  On 30 December 1982, he applied for a residence

permit.

        Sometime thereafter the marriage broke down.  It is not

entirely clear when the actual breakdown of the marriage took place

and when the first applicant and his wife stopped living together.

On 23 February 1984 the Deputy Minister of Justice (Staatssecretaris

van Justitie) considered that the first applicant and his wife still

lived in the same house but that their marriage had broken down

already.  The Judicial Division of the Council of State (Afdeling

Rechtspraak van de Raad van State) considered it established that the

actual breakdown of their marriage took place in February 1983 and

that they stopped living together that same month.  The first

applicant has always maintained that he and his wife lived together

until August 1984 and that the actual breakdown of their marriage

took place at the same time.

        On 19 October 1983, their son was born.  In the course of the

divorce proceedings instituted by the wife of the first applicant in

August 1984, the child was provisionally awarded to his mother on

24 October 1984.

        The first applicant's request for a residence permit was

rejected by the Deputy Minister of Justice on 23 February 1984.  The same

authority also rejected a request for a review of this decision on

3 June 1985.  The first applicant appealed against this decision on

8 July 1985 to the Judicial Division of the Council of State.

        The Deputy Minister decided not to allow the first

applicant to await the decision of the Council of State in the

Netherlands.  In summary civil proceedings, the first applicant

requested a court order that he would not be expelled from the

Netherlands before the final decision concerning his request for a

residence permit.  On 25 July 1985, the President of the Regional

Court (Arrondissementsrechtbank) of Amsterdam refused to issue such an

order, inter alia, on the grounds that there existed no "family life",

within the meaning of Article 8 of the Convention, between the first

applicant and his child, and that the first applicant was not entitled

to lawful residence in the Netherlands pending the divorce

proceedings, in the course of which a decision would have to be made

on the guardianship over the child.

        A further request that he not be expelled before a final

decision in the divorce proceedings as to the guardianship of the

child and the arrangement for visits to the child would be given

was rejected by the President of the Regional Court on

26 September 1985.

        The Court of Appeal (Gerechtshof) of Amsterdam rejected the first

applicant's appeal against the first judgment of the President of the

Regional Court on 19 December 1985.

        On 18 January 1985, during a hearing before the Regional Court

of Amsterdam concerning visiting rights between the first and the

second applicant, the first applicant declared that he had not seen

his son for four months.  On 25 January 1985 the Regional Court

adopted a visiting arrangement concerning contacts between the first

and the second applicant during the divorce proceedings between the

first applicant and his wife.  This provisional arrangement was

subsequently amended on 26 June 1985 and 15 October 1985, but each

arrangement provided that the first applicant was allowed to visit the

second applicant for one hour every two weeks.  It appears that the

mother did not permit the visits to take place.

        On 5 March 1986, the divorce was finally pronounced by the

Regional Court.  A final arrangement for contacts between the first

applicant and his son was adopted by the same court on 8 September 1986,

allowing him to visit his son for one hour every month in the house of

the mother.  In the same decision, the mother was appointed guardian

of the child.  The first applicant was appointed co-guardian.  It

appears that the mother has impeded any contact between the applicants

since then.

        In the proceedings concerning the refusal of a residence

permit, the Judicial Division of the Council of State rejected the

first applicant's appeal on 11 September 1987.  The Judicial Division

considered that there was no rule of aliens policy under which the

applicant was entitled to reside in the Netherlands and that a

residence permit could be refused under Section 11 para. 5 of the

Aliens Act (Vreemdelingenwet).  Furthermore, the Council found that

insofar as the refusal of the residence permit interfered with the

first applicant's family life within the meaning of Article 8 of the

Convention, this interference was justified under the second paragraph

of Article 8, in particular on the ground of prevention of disorder.

In this respect, the Judicial Division considered that the interest

involved in the refusal of the residence permit outweighed the first

and second applicants' interest in the continuation of the contacts

between them, since the first applicant had not submitted any

information on the contents of his relationship with his child, apart

from the limited arrangement that was ordered by the Regional Court.

        The first applicant has not yet been expelled.

COMPLAINTS

        The applicants complain principally of a violation of their

right to respect for their family life, and, as a subsidiary

complaint, of a violation of their right to respect for their private

life, because the practical effects of an expulsion of the first

applicant would constitute a disruption of the links binding him and

his young child.  They rely on Article 8 of the Convention, alone and

in conjunction with Article 14 of the Convention.

        The first applicant also complains of a violation of Article 3

of the Convention in that an expulsion of the first aplicant, in view

of his parental relationship with his son and his personal, very

emotional bond with his son, would amount to inhuman treatment.

        The applicants also allege that an expulsion of the first

applicant before an independent and impartial court has decided on the

guardianship over the child, would benefit his wife in the proceedings

concerned to such an extent that there could be no question of a fair

hearing within the meaning of Article 6 of the Convention.

        Finally, the applicants complain that an expulsion of the

first applicant before the divorce proceedings have ended would

constitute a violation of Article 12 of the Convention, and, as a

subsidiary complaint, a violation of Article 12 in conjunction with

Article 14 of the Convention, since the first applicant has tried to save

as much as possible of the family life he has with his son in the divorce

proceedings and intends to found a family with his son, as far as is

possible under the circumstances of the divorce.

THE LAW

1.      The first applicant has lodged several complaints both on his

own behalf and on behalf of his minor son.

        Under Article 25 para. 1 (Art. 25-1) of the Convention the Commission is

only competent to examine an application lodged by a person claiming

to be the victim of a violation by one of the High Contracting Parties

of the rights set forth in the Convention.

        However, in the present case the Commission notes that the

first applicant does not have the custody of his son, the guardianship

having been awarded to the mother.  The first applicant, therefore, is

not empowered to act on his son's behalf on the basis of any authority

over the child.  Moreover, the first applicant has failed to

demonstrate that he is otherwise entitled to represent his son with

respect to this application.

        Consequently, the Commission is of the opinion that the first applicant

is not competent under Article 25 (Art. 25) of the Convention to bring any

complaints on behalf of his son and it follows that this part of the

application is incompatible ratione personae with the provisions of the

Convention, within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention (No. 8045/77, Dec. 4.5.79, D.R. 16 p. 105).

2.      The first applicant complains that his expulsion would amount to an

unjustified interference with the right to respect for his family life.  In

particular, he alleges that an expulsion results in the breaking of the bonds

existing between him and his son.

        The Commission recalls that according to its established case-law, the

Convention does not guarantee, as such, any right for an alien to enter or

reside in a specific country (cf. for example, No. 4403/70, Collection 36 p.

92; No. 5269/74, Dec. 8.2.72, Collection 39 p. 104) or not to be expelled from

a particular country (cf.  No. 4314/69, Dec. 2.2.70, Collection 32 p. 96).

However, the Commission has also stated that expulsion from a country in which

close members of the family of the person concerned are living may be contrary

to Article 8 (Art. 8) of the Convention (cf.  No. 6357/73, Dec. 8.10.74, D.R. 1

p. 77; No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219).

        Article 8 (Art. 8) of the Convention reads as follows:

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

        family life, his home and his correspondence.

        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 national security, public safety or the economic

        well-being of the country, for the prevention of disorder or

        crime, for the protection of health or morals, or for the

        protection of the rights and freedoms of others."

        The Commission does not need to take a decision as to whether

the relationship between the first applicant and his son constituted family

life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention since

any interference with the first applicant's family life would anyway be

justified under Article 8 para. 2 (Art. 8-2) of the Convention for the

following reasons:

        The Commission notes that the decision of the Deputy Minister of

Justice not to grant the first applicant a residence permit was taken in

accordance with Section 11 para. 5 of the Dutch Aliens Act. It was, therefore,

taken in accordance with Dutch law.

        Furthermore, the decision was consistent with Dutch immigration-control

policy and could therefore be regarded as having been taken for a legitimate

purpose, viz. the preservation of the country's economic well-being within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

        The question which remains to be answered is whether or not the

decision was "necessary in a democratic society".

        In determining whether an interference was "necessary in a democratic

society" allowance should be made for the margin of appreciation that is left

to the Contracting States (Eur.  Court H.R., W v. the United Kingdom judgment

of 8 July 1987, Series A No. 121 - A, p. 27, para. 60 (b) and (d); Eur.  Court

H.R., Olsson judgment of 24 March 1988, Series A No. 130, pp. 31-32, para. 67).

        In this connection, the Commission accepts that the Convention does not

in principle prohibit the Contracting States from regulating the entry and

length of stay of aliens.  According to the Commission's and the Court's

established case-law (see, inter alia, the judgments previously cited),

however, "necessity" implies that the interference corresponds to a pressing

social need and, in particular, that it is proportionate to the legitimate aim

pursued.

        Having to ascertain whether this latter condition was satisfied in the

instant case, the Commission observes, firstly, that its function is not to

pass judgment on Netherlands immigration and residence policy as such.  It has

only to examine the interference complained of and it must do this not solely

from the point of view of immigration and residence, but also with regard to

the mutual interest of the first applicant and his son in continuing their

relations.  The Commission considers that the legitimate aim pursued has to be

weighed against the seriousness of the interference with the first applicant's

right to respect for his family life.         As to the aim pursued the

Commission notes that the first applicant had entered the Netherlands

illegally.  He had never been granted a residence permit.

        As to the extent of the interference, the Commission notes that the

final arrangement for contacts between the first applicant and his son adopted

by the Regional Court provided for a visit for one hour every month.  It

appears, however, that in fact the first applicant and his son have not had any

contacts since September 1986.

        Having regard to these circumstances, the Commission finds no

indication that in reaching their decisions on this matter the Dutch national

authorities and Court struck an unfair balance between the conflicting

interests at issue.

        To the extent that there was an interference with the first applicant's

right under Article 8 para. 1 (Art. 8-1) of the Convention such interference

was justified under paragraph 2 of Article 8 (Art. 8-2) of the Convention.

        It follows that the application, in this respect, is manifestly

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

Convention.

3.      The first applicant further complains that his expulsion before a final

judicial decision as to the guardianship over the child would deprive him of

the right to a fair trial in those proceedings.  He alleges a violation of

Article 6 (Art. 6) in this respect.

        The Commission notes that on 8 September 1986, the Amsterdam Regional

Court took a final judicial decision as to the guardianship, appointing the

mother of the second applicant as his guardian. At the time of this decision,

no expulsion of the first applicant had taken place.

        If follows that this part of the application is manifestly ill-founded

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

4.      The first applicant also complains of violations of Article 8 (Art. 8)

insofar as it guarantees his right to respect for private life and of Articles

8 and 12 in conjunction with Article 14 (Art. 8, 12+14) of the Convention. He

makes a separate complaint alleging a violation of Article 3 (Art. 3) of the

Convention.

        However, the Commission is not required to decide whether or not the

facts alleged by the first applicant disclose any appearance of a violation of

these provisions as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted according to

the generally recognised rules of international law.  The mere fact that the

first applicant has submitted his case to the various competent courts does not

of itself constitute compliance with this rule.  It is also required that the

substance of any complaint made before the Commission should have been raised

during the proceedings concerned.  In this respect the Commission refers to its

constant jurisprudence (see e.g No. 1103/61, Yearbook 5, pp. 168, 186; No.

5574/72, Dec. 21.3.75, D.R. 3, pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37.

pp. 113, 120).

        In the present case the first applicant did not raise, either in form

or in substance, in the proceedings before the Judicial Division of the Council

of State, the complaints which he now makes before the Commission.  Moreover,

an examination of the case does not disclose the existence of any special

circumstances which might have absolved the  first applicant, according to the

generally recognised rules of international law, from raising these complaints

in the proceedings referred to.

        It follows that the first applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of his application must

be rejected under Article 27 para. 3 (Art. 27-3) 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)