Resolution CM/ ResDH (2010)60 [1]

Execution of the judgment of the European Court of Human Rights

Rodrigues da Silva and Hoogkamer against the Netherlands

(Application No. 50435/99, judgment of 31 January 2006, final on 3 July 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the applicants ’ right to respect for their family life du to the respondent state ’ s refused to issue a residence permit to the first applicant, a Brazilian national (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)60

Information about the measures to comply with the judgment in the case of

Rodrigues da Silva and Hoogkamer against the Netherlands

Introductory case summary

The case concerns a violation of the applicants ’ right to respect for their family life due to the refusal by the respondent state to issue a residence permit to the first applicant, a Brazilian national (violation of Article 8).

In 1994 the first applicant came to the Netherlands where she lived with her partner. The second applicant was born from this relationship in 1996. After the relationship ended, in 1997, the father was awarded parental authority over the child. The first applicant stayed in the Netherlands and looks after the second applicant three to four days a week. The rest of the week the second applicant is cared for by her paternal grandparents.

The first applicant did not apply for a residence permit until 1997. At the time the child was born, she was thus residing illegally in the Netherlands . Her request for a residence permit in 1997 was rejected by the Dutch authorities, a decision which was confirmed on appeal by the administrative authorities and then by the domestic courts. In 2002 she applied once again for a residence permit, which was refused.

The European Court observed that, parental authority having been awarded to the father, the first applicant was not able to take the second applicant with her to Brazil without the father ’ s permission, which would not be forthcoming. Thus, the refusal of a residence permit and the expulsion of the first applicant to Brazil would in effect break her very close ties with the second applicant as it would be impossible for them to maintain regular contacts. Therefore, the European Court considered that “in view of the far-reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter [ ... ], in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants ’ rights under Article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of [the birth of the second applicant]” (see §44).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

145,30 euros

145,30 euros

Paid on 01/08/2006

b) Individual measures

The first applicant was granted a residence permit with retroactive effect as from 15/07/1999. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The Dutch authorities noted that following this judgment, Dutch policy regarding Article 8 of the Convention has been adapted by a special decision ( Wijzigins-Besluit Vreemdelingencirculaire WBV 2007/30), which has been incorporated in chapter B2/10 of the Aliens Act Implementation Guidelines ( Vreemdelingencirculaire ) 2000). The authorities consider that given the direct effect of the European court ’ s judgments in the Netherlands , all authorities concerned are expected to align their practice to the present judgment. For that purpose, the judgment was disseminated to the immigration authorities and published in several legal journals in the Netherlands , in particular the NJCM-Bulletin (2006, no. 6, pp. 844-851), European Human Rights Cases (2006, no. 3, pp. 310-316) and Nederlands Juristenblad (2006, no.17, p. 953).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies