Information Note on the Court’s case-law 20

July 2000

Cılız v. the Netherlands - 29192/95

Judgment 11.7.2000 [Section I]

Article 8

Article 8-1

Respect for family life

Expulsion pending proceedings relating to access to child: violation

Facts : The applicant, a Turkish national, married in the Netherlands in 1988. The couple had a child in 1990., but separated in 1991. As the residence permit which the applica nt had obtained was dependent on his marriage and cohabitation, he lost the right to reside in the Netherlands from the moment of separation. He obtained a separate one-year residence permit to enable him to work, but his request to have this renewed was r ejected in 1993 because was at that time in receipt of unemployment benefit. His request for a review was rejected by the State Secretary for Justice in October 1994 and his appeal to the Hague Regional Court was dismissed in May 1995. In the meantime, the applicant had requested the Utrecht Regional Court to establish formal access arrangements in respect of his child. The court had found such arrangements inappropriate, although it had assumed that the existing informal contacts would continue. The applic ant had appealed to the Court of Appeal, which in June 1995 requested the Child Care and Protection Board to organise supervised meetings on a trial basis. However, while the appeal was pending, the applicant was placed in detention with a view to his depo rtation. The first trial meeting did not take place until November 1995, the day before the applicant was expelled. The access proceedings were eventually continued in the absence of the applicant, who had been refused an entry visa. In May 1998 the Court of Appeal confirmed the decision not to establish formal access arrangements, taking into account the time which had passed since the applicant had seen his child. The applicant’s further appeal was dismissed by the Supreme Court in April 1999. He had re-e ntered the Netherlands and submitted a new application for access arrangements. This was rejected by the Regional Court in December 1999. An appeal is pending.

Law : Article 8 – A bond amounting to family life exists between parents and a child born in marr iage and is not terminated by separation or divorce resulting in the child ceasing to live with one of them. While the applicant did not always demonstrate the extent to which he valued meetings with his child, meetings took place on a fairly frequent, if not regular basis and he applied to the courts to have access determined. The events subsequent to his separation from his wife did not, therefore, constitute exceptional circumstances capable of breaking the ties of family life. The domestic authorities w ere in the processing of fulfilling their positive obligation of ensuring the continuation of family ties after divorce, but the decision to expel the applicant frustrated this examination, and there was therefore an interference with his right to respect for family life. This interference had a basis in domestic law and was aimed at preserving the economic well-being of the country. As to necessity, by expelling the applicant after it had been decided that trial meetings should take place, the authorities not only prejudged the outcome of the access proceedings but, more importantly, they denied the applicant all possibility of any further meaningful involvement in them. Moreover, by the time he was able to return, the passage of time had resulted in a de f acto determination of the proceedings which he then instituted. By failing to coordinate the proceedings, the authorities did not act in a manner permitting the development of family ties. The decision-making process concerning both the expulsion and the a ccess did not afford the requisite protection of the applicant’s interests.

Conclusion : violation (unanimously).

Article 41 - The Court considered that there was no causal link between the violation and the pecuniary damage claimed by the applicant. It awa rded him 25,000 guilders (NLG) in respect of non-pecuniary damage and also made an award in respect of costs.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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